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SWAT/TACTICAL TEAM LIABILITY ISSUESApril 18, 2017 (Castro Valley)April 20, 2017 (Sacramento)

Presented by

HARRY S. STERNPartner

©RAINS LUCIA STERN, PC

SWATA designated unit of law enforcement personnel specially trained in the use of weapons and specialized, incident-specific and coordinated tactics to accomplish the basic law enforcement objective to protect and preserve life.

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POST Guideline Requirements for SWAT

The legal issues of SWAT operationsThe practical issues of

SWAT operationsPersonnel selectionFitness requirementsPlanningHostage negotiationTactical issuesSafety

Rescue methodsAfter-action evaluationLogistical and resource

needs Uniform and firearms

requirementsRisk assessmentPolicy considerationsMulti-Jurisdictional SWAT

operations

California Penal Code § 13514.1

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1. SWAT Team Formation-Policy Formulation2. Selection of Personnel Including Team Leaders and

Tactical/Incident Commanders3. Training-Coordinated Training with Communications,

HNT, Medical Support4. Tactical/Operational Deployment Issues

Intelligence Gathering

Uniforms and Equipment

Use of Force

Warrantless Entry

5. Preparation of Reports6. Testifying in Depositions and/or Court

Six Main Areas of Liability in SWAT Operations

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Three Organizational Studies of SWAT

Team Operations.

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The CATO Institute is a public policy research organization – a think tank – dedicated to the principles of individual liberty, limited government, free markets and peace.

CATO Institute

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Studied 115 “Botched Raids” between 1995 and April 2006

Most involved drug-related searches or service of high-risk search warrants

CATO Institute

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California Cases1. March 13, 1996 – Oxnard

“Early morning drug raid on home which was unoccupied. Flashbang was deployed – SWAT Team officer confused fellow officer with hostile occupant – killed officer. $3.5 million settlement.

2. July 11, 1997 – Dinuba“Early morning service of “high-risk” search warrant – fatal shooting of 64 year old man in underwear. Jury awards $12.5 million.

CATO Institute Study

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California Cases3. August 9, 1999 – El Monte

“Late night entry into residence looking for drug suspect who was “associated” with the house – 65 year old occupant who was believed to be reaching for a gun shot in back and killed. $3 million settlement.

4. September 2, 2003 – Fremont“Fremont officers force entry into residence of drug sales suspect. Suspect had medical marijuana card and doctor prescription. Police shot the suspect’s dog, an Akita, 9 times. No criminal charges filed against suspect. Unknown civil outcome.


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California Cases5. February, 2004 – San Bernardino

“Forced entry of door by police looking for cocaine. Search warrant authorized entry into apartment 214, but officers forcibly entered apartment 204 and arrested occupants for possession of marijuana. D.A. dropped the case. Unknown civil outcome.


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American Civil Liberties Union Study of 800 SWAT

Deployments Conducted by 20 Law Enforcement

Agencies in 2011 & 2012

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The majority of SWAT deployments between 2011 and 2012 involved service of search warrants (79%)

62% of SWAT deployments were to search for drugs (with or without the issuance of search warrants)

In 35% of the deployments, weapons were believed to be located inside – in 13%, weapons were not believed to be located inside

ACLU Study

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The ACLU Study criticizes the use by SWAT Teams of “violent tactics and equipment which includes use of armored personnel carriers, forced entry into a residence using a ram or some other type of breaching device.

The ACLU Study also strongly criticized what it referred to as “militarization of policing and especially SWAT Team operations, which “encourages officers to adopt a warrior mentality and think of the people they are suppose to serve as enemies.”

ACLU Study

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The International Association of Chiefs of Police and the National

Tactical Officers Association

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This joint report from IACP and NTOA was disseminated as “a national assessment of critical trends and issues” (relating to SWAT operations) from 2009 to 2013. NTOAcollected information from 284 law enforcement agencies concerning SWAT practices. The survey involved a study of 999 SWAT Team operations during the period at issue (2009 – 2013).

Almost all of the Agencies reporting stated that after action reports are completed following every SWAT deployment.

IACP & NTOA

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Almost all of the Agencies surveyed reported their curriculum to include training in (1) high-risk operations, (2) negotiations, (3) specialty munitions, (4) SWAT Team management, (5) tactical firearms, and (6) tactics.

The most common incident involving activation of a SWAT Team from 2009 – 2013 was the service of a high-risk search or arrest warrant.

Agencies that activated their SWAT Team indicated they were 8 times more likely to use less lethal solutions than lethal force.

IACP & NTOA

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Gallardo v. Reinnecius, et. al.,U.S.D.C. #CIV-F-97-6111 OWW

Incident Occurred July 11, 1997, in Dinuba, CA

Case Study

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Primary Issues

1. Formation/personnel selection2. Equipment/weapons3. Training4. Planning: Surveillance/intelligence

gathering5. Tactical approach/entry6. Use of Force

Case Study:Gallardo v. Reinnecius, et. al.

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ExhibitSelective Enforcement Team(S.E.T.)

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Exhibit Selective Enforcement Team (S.E.T.)Training AgendaMarch 6, 1997

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ExhibitSelective Enforcement Team (S.E.T.)Training Attendance

March 6, 1997

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ExhibitSelective Enforcement Team (S.E.T.)Training Agenda

March 20, 1997

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ExhibitSelective Enforcement Team (S.E.T.)Training Attendance

March 6, 1997

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Exhibit

Selective Enforcement Team (S.E.T.)Training Agenda

April 18, 1997

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Exhibit

SelectiveEnforcement Team (S.E.T.)Training Attendance

March 6, 1997

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Exhibit: Operations Plan

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Exhibit: Home Layout

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Exhibit: Special Verdict Form

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DinubaAnother Possible Issue

In some instances, courts are now saying that the decision to activate a tactical team in the first place can constitute excessive force if it is not objectively reasonable in light of the totality of the circumstances.

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McCracken v. Freed243 Fed.Appx.702 (2007)

(3rd Circuit)

Case Study

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Six police officers went to the McCracken home at 11:30 a.m. to serve an arrest warrant issued 11 days earlier for Mr. McCracken. The warrant related to his failure to register as a sex offender and they also had a misdemeanor warrant for his arrest for “loitering at night.” Officers knocked on the door but there was no response, so the officers left. Later that morning, after being briefed on the earlier effort to serve the warrants, the Police Chief decided to activate the Department’s Tactical Response Team (TRT) because he was aware that Mrs. McCracken had previously filed an assault charge against her son for allegedly choking her and was concerned that she might be inside the residence and injured by her son.

Facts:

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When the TRT arrived, they placed a number of phone calls to the residence which were not answered. They then used a “public address system” to call to those inside, turned on sirens of vehicles and knocked on the front and back door of the house shouting to get the McCrackens’ attention. After being at the house for approximately 1 ½ hours and having no response to efforts to contact those inside, TRT Officers broke the front windows and delivered two oleoresin capsicum (pepper spray) canisters through the front window of the home. After that occurred an officer broke the sliding-glass door in the rear of the house and entered the apartment with three other armed officers. The McCracken son was arrested and Mrs. McCracken was found to be in a bedroom where the pepper spray was delivered and had sustained minor cuts from broken glass. The McCrackenssued the police department and the Police Chief contending that the Police Chief’s deployment of the TRT was excessive force.

Facts:

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First, the McCrackens provided no evidence to support a claim that the municipality failed to adequately train its TRT Officers.

It was not unreasonable for the Police Chief to activate the TRT, order entry into the house or approve the nature of the entry and use of pepper spray.

There was a possibility the son was holding his mother against her will.

The TRT had attempted numerous times to communicate with those inside to no avail.

It was objectively reasonable for the TRT to believe the only way it would be able to effectuate the arrest was through forced entry.

The Case was Dismissed:

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Another Dinuba- Related Issue: Should Agencies Use a “Risk

Assessment” or a “Risk Assessment Matrix” or a

“Threat Matrix” to Deploy Tactical Teams

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©RAINS LUCIA STERN, PC36

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0-14 POINTS – Service may be handled by investigating unit with notification of appropriate command staff.

15-24 POINTS – Consultation with ERTCommander is required for determination of appropriate service. Command staff also notified prior to service.

25 + POINTS – ERT activation is required for service. All appropriate command staff is notified. ERT will assume authority of service.

Risk Assessment

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Issues Concerning SWAT Team Use of

Deadly (Lethal) Force

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What is “deadly force”?• Smith v. City of Hemet, (9th Cir. 2005) 394 F.3d 689 (Deployment

of police canine)

No longer defined as “force likely to kill” • Veracruz v. City of Escondido, (9th Cir. 1998) 139 F.3d 659

Now defined as force “which creates a substantial risk of causing death or serious bodily injury.” (This definition could include use of a flash-bang device and a bean bag round)

Issues: Deadly Force

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Factors to Consider When Deciding to Use Deadly/Lethal Force

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1. Tennessee v. Garner, (1985) 471 U.S. 1, 85 L.Ed 2d 1

2. Apprehension of a citizen by use of deadly force is a “seizure” subject to the reasonableness requirement of the 4th Amendment.

3. For “seizure” by use of deadly force, officers must have probable cause to believe:

Suspect poses the threat of death or serious physical injury; Suspect committed a crime involving infliction or threatened infliction of

death/serious physical injury Is suspect actively resisting or attempting to avoid apprehension? Where feasible, the officer has given some type of warning in deciding whether

the force was reasonable; courts may consider availability of alternative methods of capturing or subduing the suspect. Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994).

BUT:When it comes to use of force, officers are not required to use the “least

intrusive means” to apprehend a suspect. Scott v. Heinrich, 39 F.3d 912 (9th Cir. 1994)

Deadly Force: Factors to Consider

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“Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. In the heat of battle with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment.

Officers thus need not avail themselves of the least intrusive means of responding to an exigent situation; they need only act within that range of conduct we identify as reasonable.”

Case Study:Scott v. Henrich, (1994) 39 F.3d 912

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“Thus, under Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.”

Case Study: Martinez v. County of Los Angeles(1996) 47 Cal.App.4th 334

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42 U.S.C. § 1983 Cases

An Officer’s 4th Amendment Violation of Entering a Residence illegally, thereby “provoking a violent confrontation” may subject him to civil liability even if the lethal force was otherwise justified and lawful.

Billington v. Smith, 292 F. 3d. 1177 (9th Cir 2002)

Espinoza v. City and County of San Francisco, 598 F. 3d. 528 (9th Cir. 2010)

Sheehan v. City and County of San Francisco, 743 F. 3d 1211 (9th Cir. 2014)

The Importance of Officer’s Tactics/ConductBefore Use of Lethal Force

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“Law enforcement personnel’s tactical conduct and decisions preceding the use of deadly force are relevant considerations under California Law in determining whether the use of deadly force gives rise to negligence liability.”

Pre-shooting tactics/conduct may make an otherwise defensible shooting negligent

Hayes v. County of San Diego, 57 Cal. 4th (2013)

California Supreme Court Discussing Civil Liability for Negligence

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This case involves the highly-publicized FBI hostage rescue team deployment at Ruby Ridge, Idaho in August 1992.

• Tactics-Surround and drive the occupants crazy.• Supervisors on scene re-write “Standard Rules

of Engagement,” thus causing the violation (use of excessive force) to occur.

Case Study: Harris v. Roderick(9th Cir. 1997) 126 F.3d 1189

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1. If a court determines the defendant officer(s) did not violate the plaintiff’s constitutional rights, the issue of Qualified Immunity doesn’t arise.

2. Officers who are found to have violated the plaintiff’s constitutional “rights are still entitled to Qualified Immunity” if a reasonable officer could have believed his actions to be lawful, in light of clearly established law and the information the officer possessed.”

Hunter v. Bryant (1991) 502 U.S. 224

Officers May be Entitled to be Dismissed as a Defendant Before Trial on the Basis of “Qualified Immunity”

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3. The protection of Qualified Immunity applies even where an officer makes “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”

Pearson v. Callahan (2009) 555 U.S. 233

4. Qualified Immunity protects “all but the plainly incompetent or those who knowingly violate the law.”

Malley v. Briggs (1986) 475 U.S. 335

Officers May be Entitled to be Dismissed as a Defendant Before Trial on the Basis of “Qualified Immunity”

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Training liability in “State” causes of action brought in Superior Court founded on

“negligence” theory.

Most training liability cases are brought as part of Federal Civil Rights actions. (42 U.S.C. § 1983)

Attorney fee payment issues. Discretionary immunity to employees in state court actions

when an injury occurred due to a discretionary decision, even if the discretion was abused. (Gov’t Code § 820.2)

If the employee is immune, so is the agency. (Gov’t Code §815.2)

Training Liability

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Not based on negligence. Not based on theory that the agency is automatically

responsible for acts of its employees (Respondent Supervisor). No training liability if the officer did not commit a

constitutional violation.

Rather: Enactment of a formal policy or allowing a widespread practice

which constitutes the “standard operating practice” of the agency, or

An official with policy-making authority either “causes” the violation to occur or “ratifies” a subordinate officer’s violation.

An officer with policy making authority sets into motion (or fails to set into motion) the events which cause the constitutional violation.

Training Liability Under42 U.S.C. § 1983

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City of Canton v. Harris (1989) 489 U.S. 378

Liability for training may be imposed where “…in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policy makers of the City can reasonably be said to have been deliberately indifferent to the need.”

Training Liability Under42 U.S.C. § 1983

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1. Plaintiffs demonstrate a failure to train officers in a specific area where there is an obvious need for training;

2. Plaintiffs demonstrate that there is a pattern of unconstitutional conduct so pervasive in the agency that the policy makers have “constructive knowledge” of the need for training; and

3. Plaintiffs demonstrate that the policy maker affirmatively instructs the officers to engage in unconstitutional conduct.

Three Separate Theories Under Which“Deliberate Indifference to Training”May be Established – 42 U.S.C. § 1983

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Training program is legally adequate if it enables officers to respond properly to “usual and recurring situations.”

The legal focus is on the adequacy of the training program, not whether particular officers were properly trained.

Merritt v. County of Los Angeles (9th Cir. 1989) 875 F.2d 765

Training program may be “constitutionally adequate” even if plaintiff’s demonstrate the desirability of more or different types of training.

Mateyko v. Felix (9th Cir.1990) 924 F.2d 824

Important Points in Training Liability

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1. S.F.P.D. “tactical squad” members forcibly enter decedent’s home to serve a “forcible entry warrant” to facilitate a Health Department inspection, and shoot and kill the decedent when he appears at the top of a staircase pointing a handgun.

2. Plaintiffs alleged the S.F.P.D. failed to train the incident commander in the proper response to barricaded suspect situations.

Holding of the Court

“In those cases where we have held that a question of fact existed as to the deliberately indifferent character of a municipality’s failure to train, plaintiffs have alleged a program wide inadequacy in training.[citation] Here, by contrast, plaintiff argues only that the training of Commander Lennon was inadequate. She has produced no evidence showing that the alleged inadequacy of his training was the result of a ‘deliberate’ or ‘conscious’ choice, which, under Canton, is necessary to establish a municipal policy. 489 U.S. at 389; see also Ting v. United States, (9th Cir. 1991) 927 F.2d 1504, 1512. Absent such evidence, any shortfall in Lennon’s training can only be classified as negligence on the part of the municipal defendant—a much lower standard of fault than deliberate indifference.”

Case Study: Alexander v. City and County ofSan Francisco (9th Cir. 1994) 59 F.3d 1355

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1. Knock and notice

2.Exigent circumstances

3.Excessive force/abusive conduct and property destruction during searches

Search Warrant Issues

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Penal Code § 1531, 18 U.S.C. 3109

“An officer may breach an outer or inner door or window of a house or room therein to execute a search warrant if after notice of his authority and purpose, he/she is refused admittance.”

Knock and Notice Issues

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How long are you required to wait?

1. Wait of 5 seconds after knock/notice and not hearing anything inside is not enough.

U.S. v. Granville, (9th Cir. 2000) 222 F.3d 1214

2. If nothing heard inside-10 second wait is sufficient.

U.S. v. Allende, (9th Cir. 1973) 486 F.2d 1351

3. 5 second wait okay when someone heard running away from the door.

McClure v. U.S. (9th Cir. 1964) 332 F.2d 19, 22

Knock and Notice Issues

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1. Have a magistrate approve a search warrant which relieves officers of the requirement to knock and notice.

2. Exigent circumstances excuse knock and notice.

3. Officers must have reasonable suspicion that 1 of 3 grounds exist in order to dispense with knock and notice: Circumstances present a threat of physical violence Reason to believe evidence will be destroyed if knock and

notice is given If knocking and announcing would be futile

Hudson v. Michigan (2006) 547 U.S. 586

Dispensing with Knock and Notice Issues

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“An urgent need for immediate action.” U.S. v. Flickinger, (9th Cir. 1978) 573 F. 2d 1349

May relieve officers from the obligation to get a search warrant

May relieve officers from obligation to knock/notice

Exigent Circumstances

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1. Imminent danger to life

2. “Community Caretaking” “Welfare” Checks Insecure premises Keep the Peace Possible 5150

3. Investigative Emergency Hot pursuit Fresh Pursuit

Exigent Circumstances Can be Divided intoThree Categories

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Denver Colorado SWAT team and FBI agents throw a stun grenade into living room after breaking down door with a ram

No Exigent Circumstances The underlying crime was two purchases of small amounts

of cocaine There was no surveillance to determine if the house was

fortified Officers only knew that:

The defendant had “supposedly” been seen on occasion with a handgun; and

He was of Jamaican descent.U.S. v. Stewart, (10th Cir. 1989) 867 F.2d 581

No Exigent Circumstances to JustifyDispensing with Knock and Notice

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“Fresh pursuits” (a type of exigent circumstance)

Unlike “hot pursuits”, these are not physical chases, but instead are investigative chases, where officers are actively attempting to find and arrest a suspect, and in doing so, are quickly responding to developing information concerning his whereabouts. Officers in “fresh pursuit” of a suspect may enter a home/structure to arrest if 5 elements are present:

Fresh Pursuits

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1. The crime under investigation is a seriousfelony;

2. The officers have acted diligently to arrest the suspect after the crime was committed;

3. Officers have developed probable cause to arrest the suspect;

4. Officers must have “reason to believe” the suspect is inside the structure (very similar to “probable cause”); and

5. Officers are aware that the suspect has been actively fleeing, or soon will be fleeing.

Fresh Pursuits: Five Elements

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“Hot Pursuit” (a type of exigent circumstance)

A hot pursuit occurs when officers attempt to arrest a suspect in a public place and he responds by running into his home or some other private place. When this happens the officers may pursue him inside.

Hot Pursuit

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No need for warrant due to exigent circumstance

A drunk subject essentially barricaded himself in his apartment with an arsenal of rifles. He was seen cleaning and loading some of the rifles and was heard to be yelling about the second amendment right to carry guns. He pointed a gun in a security guards direction and the security guard called the police.

Police initially arrived at 1:50 a.m. and the police saw the suspect on and off between then and 6:30 a.m. He was seen to point a rifle at officers at times, and also threatened to shoot and kill them. SWAT team arrived at 7:00 a.m. Suspect finally was taken into custody at 2:15 p.m. Suspect was last seen holding a rifle at 6:30 a.m. and there did not appear to be any exigency between then and 2:15 p.m.

9th Circuit Court of Appeal held that officers were not required to get a search warrant to enter at 2:15 p.m. Since exigent circumstances existed at the time officers initially arrived, the standoff was simply a continuation of those circumstances.

Case Study: Fisher v. City of San Jose(9th Cir. 2009) 558 F.3d 1069

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Property destruction may invalidate a search even if initial entry is lawful.

U.S. v. Ramirez (1998) 523 U.S. 65, 140 L.E.D. 2d 1919

Issues Relating to Entry

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L.A.P.D. CRASH Unit does a “crisis entry” into house, ransacked house and destroyed property, threatened to blow the subject’s brains out, and were found civilly liable for (1) unreasonable search through the use of excessive force and (2) destruction of property.

Case Study: Larez v. Gates(9th Cir. 1991) 946 F.2d 630

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Flash-Bang entry by SWAT team held to constitute excessive force

“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.”

However, officers not liable for the constitutional violation due to qualified immunity—the law concerning use of flash-bangs was not clearly established.

Boyd v. Benton Co., Oregon, (9th Cir. 2004) 374 F.3d 773

Use of Flash-Bang Device

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Monterey County California: 2012

Monterey County Sheriff’s Department SWAT Team surrounds home of a suspect in a non-fatal shooting. After he does not respond to a demand that he exit the residence unarmed, SWAT throws a flash-bang grenade into the house. Furniture and a Christmas tree are ignited by the device and the Fire Department is summoned. Fire crews have difficulty getting to the residence due to the presence of numerous police vehicles parked in the area. The suspect is burned to death in the ensuing fire. Case settled by Monterey County for $2.6 million.

Flash-Bangs: Be Aware of Fire Danger

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1. Officers are confident that one or more persons inside are actually armed; and/or

2. The doors and/or windows are barricaded or fortified in some way; and/or

3. Suspects believed to be inside have a history of violent and/or resistive conduct; and/or

4. Officers believe there is not a likelihood that there are persons inside unconnected with the crime who may be put at risk.

Use of Flash-Bang Device Will Probably be Defensible When a Combination of at Least Two of the Factors Below are Present:

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Throwing a flash-bang in service of No-Knock Search Warrant at crack house okay

U.S. v. Baker, (8th Cir. 1994) 16 F.3d 854

Commonwealth v. Garner, (MASS, 1996) 423 MASS 735, 672 N.E. 2d 510

Search warrant service: Flash-bang thrown into house where marijuana being grown – officers “dangerously close” to Fourth Amendment violation when they were aware that there was a 19 year old, 9 year old, and 17 month old baby inside.

U.S. v. Myers, (10th Cir. 1997) 106 F.3d 936

Other Cases Dealing with Flash-Bangs

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Criminal Liability Resulting from SWAT

Team Operations

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• 18 U.S.C. § 241, 242—violation of federal civil rights• Penal Code § 149 P.C.—assault under color of authority• Penal Code § 192(b) P.C.—involuntary manslaughter• Penal Code § 195 P.C.—excusable homicide (by

accident and misfortune)• Penal Code § 196—justifiable homicide-public officers• Penal Code § 245(a)(2)—A.D.W. with a firearm• Penal Code § 245(a)(3)—A.D.W. with a machine gun• Penal Code § 243(b)—A.D.W. with semi-automatic

firearm

Criminal Liability Resulting FromSWAT Team Operations

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Issue: Criminal liability of Command Staff

Humboldt County criminal prosecution of a SWAT Team incident Commander and Police Chief for the death of an emotionally disturbed and distraught woman named Cheri Moore.

Theories Involuntary manslaughter due to illegal trespass into

Moore’s apartment; and

Involuntary manslaughter due to negligent supervision of SWAT Team resulting in death.

Case Study: People v. David Douglas and Antonio ZanottiHumboldt Co., Case # CR076157A&B

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Case Study:Oakland P.D. – March 21,

2009Chronology

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1:08 p.m. Traffic stop by Dunakin and Hege1:15 p.m. “Shots fired” broadcast1:16 p.m. Suspect M-black 5’8” 150#, black clothing – fled s/b on

74th, unknown if on foot or in a car 1:20 p.m. Lt. Lindsey (city-wide watch commander) on

shooting scene1:31 p.m. Mufarreh arrives and directs Alexander to coordinate a

perimeter1:40 p.m. Agreement between Mufarreh, Lindsey and Alexander:

Lindsey handles crime scene Alexander handles outer perimeter Mufarreh handles inner perimeter

Case Study: Oakland PD 3.21.09

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1:49 p.m. Mufarreh calls “blue alert”1:50 p.m. Sgt. Andreotti asked Mufarreh for permission to take a

team of patrol riflemen to clear the apartment –Mufarreh refused

2:00 p.m. Ersie Joyner to Mufarreh – C.I. had told him that the suspect had been staying for the last few days at 2755 74th Avenue“Command post” established at 74th and MacArthur –Command officers in huddle

2:04 p.m. 3V8: Target location, southbound window – there’s people looking out

2:25 p.m. Orozco talks to Ed Tracy – Agrees to be tactical commander


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2:35 p.m. Orozco arrives at 74th and MacArthur2:40 p.m. Deputy Chief Kozicki arrives2:46 p.m. First Meeting – Mufarreh, Orozco, Lt. Lindsey,

Deputy Chief Kozicki, Sgt. Romans and Sgt. Sakai (Dep. Chief Breshears in area)

2:52 p.m. 2nd meeting – Orozco, Dep. Chief Kozicki, Lt. Lindsey, Sgt. Romans, Sgt. Sakai, Gonzales (possibly Breshears) Centered around use of tracking dogs Alternatives: Gas, Throw phone, Bull horn Sakai has building plans – the group decides

that it is too unsafe to evacuate the building


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2:58 p.m. 3rd Meeting (3-4 minutes) Orozco, Mufarreh, Sgt. Sakai, Sgt.

Romans, Sgt. Gonzales, Sgt. Beaver, Ofc. Leite, Ofc. Jones, Sgt. Reilly

3:02 p.m. Orozco broadcasts that tactical team entering “code 33 requested”

3:04 p.m. Orozco requests to have an ambulance on standby

3:05 p.m. Shots fired.

Video: 03:12


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Did the officer(s) authorizing the entry have “reason to believe” that the homicide suspect was living there?

9th Circuit (Minority View) requires officers to have probable cause (as opposed to reasonable suspicion) to believe the suspect is “living” there.

Cuevas v. De Roco, 531 F.3d 726 (2008).U.S. v. Howard, 447 F.3d 1257 (9th Cir. 2006).

Entry into the Apartment at 2755 74th Ave., OaklandMarch 21, 2009

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1. Suspect not known to reside at any other identified address.

2. Officer observes “something” that gave them good reason to suspect the suspect was using this place as a “residence.”

3. The suspect was reported to have a key to the residence.

4. The suspect had identified the place as his residence to others.

Factors Which Support Probable Cause to Believe Suspect Inside (Cont.)

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In Cuevas v. De Roco, supra. The Court held no “probable cause” to believe a parolee resided at the location.1. Information that he lived at this address was over

a year old.2. Deputies made no independent observations he

lived there.3. He had never listed that address as an “emergency

contact.”


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A “residence” does not have to be an old ancestral home, but it requires more than a sleepover at someone else’s place. It is insufficient to show that the parolee may have spent the night there occasionally.”

U.S. v. Franklin, 603 F.3d 652 (9th Cir. 2010)

That a house or apartment belonging to someone else is also the “residence” of a probationer is not an inference that can be drawn simply because the probationer happens to be seen there.

Case v. Kitsap County Sheriff’s Department, 249 F.3d 921 (2001)


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Warrantless, exigent circumstances arrest of suspect was justified:1. Crimes committed were vicious/violent (rape,

robbery, homicide)2. Suspect was clearly armed3. Police had trustworthy information that the

suspect was a perpetrator4. The proximity of the suspect’s car to the

apartment suggested his presence and made flight a realistic possibility.

People v. Williams (1989) 48 Cal.3d 1112


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Penal Code § 633.8

Technology Related Issues

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Officers using a Throw Phone or Robot which can monitor/eavesdrop on communications inside a structure must apply to a judge for an order approving the use within 48 hours of deployment (PC § 633.8)

Applies to barricaded suspect or hostage situations Applies in emergency situations involving immediate danger of

death or serious physical injury Officers must believe the suspect has committed or is about to

commit crimes enumerated in 18 U.S.C. § 2516(2) – generally, crimes which are “dangerous to life, limb or property.”

Technology Related Issues

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1. Equipping SWAT Team members with cameras

2. Use of drones as scouts

3. Militarization of SWAT Teams – use of armored vehicles

Other Unresolved Issues InvolvingTechnology/Equipment

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Can the public and the media obtain police –

created video?

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Once again the law lags way behind technology . . .

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Four cases provide guidance on release of video pursuant

to the California Public Records Act

(Gov’t. Code § 6250 et seq.)

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1. Uribe v. Howie(1971) 19 Cal.App.3d 194

2. Black Panther v. Kehoe(1974) 42 Cal.App.3d 645

3. Williams v. Superior Court (Freedom Newspaper) (1993) 5 Cal.4th 337

4. Haynie v. Superior Court(2001) 26 Cal.4th 1061

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1. Gov’t. Code § 6254(f) exempts from disclosure investigatory files compiled for law enforcement purposes.

2. A document/video does not gain exempt status as part of an investigatory file unit there is some concrete prospect of an investigation. (Uribe)

3. A public agency may not shield a document/video from disclosure with the bare assertion that it relates to an investigation. (Williams)

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4. If an officer stops a person/car to investigate whether a violation of law has occurred, video of the stop is exempt from disclosure under Gov’t Code §6254(f). (Haynie)

5. Gov’t. Code §6254(f) exemption for investigatory files/videos does not terminate with the conclusion of the investigation. (Williams).

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6. An agency may waive Gov’t. Code §6254(f) exemption by supplying an investigatory file document/video on a single occasion. (Black Panther Party)

7. Remember – even if a video is not exempt as part of an investigatory file it may remain privileged and confidential if it pertains to a personnel complaint. (CA Penal Code §832.7)

Four Cases

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Presented byHarry S. SternPartner

[email protected]

www.RLSlawyers.com

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