Spring 2017

U.S. 11th Circuit Holds Deployment of Flashbang Was Excessive Force under the Fourth Amendment in Nighttime Residential Search Warrant Execution

By Michael Ramage, retired General Counsel, Florida Department of Law Enforcement and current General Counsel for the Institute for Intergovernmental Research, Inc. in Tallahassee

On January 26, 2017, the United States Court of Appeals for the Eleventh Circuit (which includes Florida) de- termined that an officer’s use of a flashbang could be unconstitutional excessive force in violation of the Fourth Amendment. The case1

arose out of actions in Georgia, but the determination that use of a flashbang

as occurred in the case was excessive force is now “clearly established law” for all the 11th Circuit, including Florida.

Facts: In July of 2010 an agent with the Narcotics Unit of Clayton County, Georgia obtained a warrant to search Jason Ward’s apartment. The application for the warrant stated that a confidential informant had ob- served a small quantity of believed marijuana in Ward’s possession, that Ward had several prior arrests for possession of marijuana, had sold narcotics from his apartment and was known to carry a 9mm handgun. A no-knock warrant execution plan was developed. The Clayton County SWAT team, commanded by Stephen Branham2

prepared a plan using four teams. The “Alpha” (entry) team would breach the front door, deploy a

flashbang, and enter and secure the apartment occupants. The “Bravo” (support) team was to wait outside and enter the apartment through the back sliding glass door if needed. The “Charlie” (diversion) team that was to “break and rake”3

the bedroom window to divert Ward’s attention. The “Delta” (consisting of one

officer) was to create a diversion by deploying a second flashbang on the end of a pole on the outside a rear wall of the apartment. The operational plan contemplated just two flashbangs—one thrown by an officer through the front door, and the second deployed by “Delta.” However, all SWAT members had authority to use more flashbangs if needed.

The department’s manual used by the SWAT team classifies flashbangs as explosives that can generate heat in “excess of 2,000 degrees centigrade,” a flash of light up to 80 times brighter than the flashbulb of a cam- era, and produce over 150 decibels of noise for less than one half of a second. The involved officers had re- ceived official instruction to visually inspect an area before deploying a flashbang.

On July 21, 2010 at 5:30 AM, the team executed the warrant. Ward and his girlfriend, Treneshia Dukes, were asleep in the bedroom of Ward’s apartment. Ward testified that he was awakened by a “boom”, heard his window break, and remembered Treneshia screaming. Although he grabbed his pistol from under his pillow, he never discharged his firearm.

Dukes testified she heard a “boom”, heard the window shattering and then saw an object coming toward her. The object hit her and then exploded. She ran into the bathroom where police detained her. Three flashbangs were deployed, the two as planned, and a third deployed by Officer Nicholas Deaton who was lo- cated outside the bedroom window.

__________________ 1Dukes v. Deaton and Branham, --F.3d -- , 11th USCA, Case No. 15-14373, 1/26/2017. 2Branham is the second defendant in the underlying lawsuit, sued in his individual and supervisory capacity. Officer

Nicholas Deaton is the first defendant in the suit, sued in his individual capacity. 3“Break and rake” is a diversionary tactic in which an officer breaks and clears out all the glass of a window. It diverts a subject’s attention and assists covering a room until the rest of the officers make entry.

Continued on next page

Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36