Spring 2017

The Court construed the facts and drew inferences from the evidence in the light most favorable to Dukes (since the appeal resulting in the court’s review was filed by the defendants). In that light, the Court indicat- ed Deaton threw the flashbang through the bedroom window where it landed near Dukes. Several witnesses said the interior of the bedroom was covered with a black residue consistent with an explosion in the room.

Dukes suffered severe burns across both thighs and her right arm that Deaton admitted were consistent with the detonation of a flashbang. She spent three days in the hospital after the raid.

Ward was arrested and convicted of being a felon in possession of a firearm. Dukes filed suit against Officer Deaton and Commander Branham in U.S. District Court, alleging an excessive use of force in violation of the Fourth Amendment (a violation of 42 U.S.C. § 1983) and state claims. At the trial court level, both Deaton and Branham were granted summary judgment in their favor based on qualified immunity as related to the use of force claim. Dukes appealed that finding.

Holding: The 11th Court of Appeals concluded that Deaton’s deployment of the flashbang in the bedroom was excessive force in violation of the Fourth Amendment. However, the Court also ruled that Deaton and Branham were entitled to qualified immunity because at the time of the warrant’s execution, there was no “clearly established law” from the U.S. Supreme Court, the 11th CA, or Georgia state courts indicating such use of the flashbang was excessive force.

Impact: With the issuance of this opinion, there is now “clearly established law” in the 11th Circuit (including Florida) that the use of a flashbang as done in this particular case is a type of unconstitutional excessive force.

Analysis: In determining that Deaton used excessive force, the Court noted his conduct posed a significant risk of harm by throwing an explosive device that can generate in excess of 2,000 degrees Celsius (3632 de- grees Fahrenheit) into a dark room in which occupants were asleep. Deaton failed to inspect the room— despite being trained to do so—to determine whether bystanders occupied the room or if other hazards ex- isted. The Court found there was minimal need for Deaton’s use of force, since the two earlier flashbangs had made Deaton’s deployment “gratuitous.” There was no evidence at the time of the deployment that Ward had drawn his gun toward officers or that Ward or Dukes had resisted the officers. The suspected crime prompting the search was possession and sale of marijuana. As put by the Court, “Deaton deployed a dangerous device into a dark room for a de minimis return.”

Florida law enforcement agencies now have established law indicating that in the narrow circumstances found in this case, deployment of a flashbang can be excessive force. In reviewing policies, agencies should take the situation of this case into account. At the same time, agencies reviewing their policies should be careful not to apply the holding of this case too broadly. The 11th CA has not indicated all deployments of flashbangs in residential situations will be excessive force.

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