The use of explosive breaching is like every tool in the SWAT commander’s toolbox. We would hope that any agency using or contemplating the use of this tool would take the time to address the important policy and training issues before going live. This article will review two recent court cases that involved explosive breaching tactics by SWAT teams.
THOMAS V. CANNON
Thomas v Cannon1 is a SWAT case that began in the town of Fife, Washington. Leonard Thomas, 24, lived with his 4-year-old son (E.T.) in a house owned by his parents, Fred and Annalesa Thomas. Leonard was depressed over the recent death of a friend and had been drinking, so he phoned his mother to come and take E.T. When his mother arrived, she and Leonard began arguing and his mother slapped him in the face. Leonard grabbed his mother’s hand and she left the home without E.T. Around 10:18 p.m., Annalesa called 911 and asked that the police respond to the home.
Patrol officers arrived at the house and spoke with Leonard over the phone. The mother had left the house and Leonard remained with his 4-year-old son. He had locked all the doors and windows. He refused to come out or release the child. He claimed he had done nothing wrong and demanded that the officers leave because they were scaring his son. Negotiations continued for several hours and officers secured a misdemeanor domestic violence warrant for Leonard based on the fact he had grabbed his mother’s hand. Once the warrant was signed at 2 a.m., team members began working to set an explosive breaching charge on the back door of the house.
Negotiators finally made progress and Leonard agreed to let his son leave the house. Leonard came out on the front porch with a car seat and overnight bag. He was standing in the doorway and E.T. was sitting on the steps when the order was given to breach the back door. When the charge detonated, Leonard ran to his son and picked him up and turned toward the house when a sniper shot Leonard. He died at the scene and his family filed a Section 1983 suit claiming violations under the Fourth and 14th amendments.
Following denial of the defendant officers’ summary judgment motion, a trial commenced in federal district court. After a 12-day trial and five days of jury deliberation, the jury awarded the plaintiffs over $8 million in compensatory damages and over $6 million in punitive damages. The defendants then filed this appeal of the verdict with the district court claiming, in part, that the jury award was too high and there was no legal basis for the verdict.
Certainly, there are a number of police-related actions that contributed to the damages awarded in this case. However, for our purposes today, we will narrow our focus to the legal findings and damages awarded based on the explosive breach of the back door. Of the total compensatory damages, $875,000 related to the explosive breach. In addition, a portion of the $4 million in punitive damages levied against the team commander and team leader resulted from the explosive breach.
The defendants argued that they were armed with a search warrant at the time the back door was breached and, therefore, the entry met Fourth Amendment standards. The district court disagreed, finding that “even though Defendants had a warrant to enter Leonard’s home, the Constitution nonetheless applied to their method of entry. The method Defendants chose — an explosive breach ignited when Leonard was unarmed and negotiating the surrender of the child to Annalesa — was a dangerous, escalatory, destructive intrusion. The damages awarded fairly reflect the jury’s view of the magnitude of that violation.”2
The defendants countered that their actions were not clearly barred at the time of the incident and, therefore, they were entitled to qualified immunity. The district court disagreed, finding that the law was, in fact, clearly established in 2013. The court noted the following facts to determine the use of the explosive breach failed to meet Fourth Amendment standards:
- Peaceful negotiations were still ongoing
- Leonard had indicated a willingness to let his son leave
- Leonard was unarmed and not threatening anyone
- The SWAT team members “were under no conceivable threat of danger”3
The defendants appealed the district court ruling to the 9th Circuit Court of Appeals. However, while the appeal was pending a settlement agreement was reached for a reported $13 million.
Of course, not all the facts testified to at trial make their way into the background facts reported in the district court’s decision. Speaking to the on-scene commander, there were a number of concerns known to the officers that led to the decisions made and are worth noting for purposes of this article. Additional testimony at trial included:
- During the standoff, Leonard Thomas had held the child out of a second-floor window and yelled at officers that he had a pistol;
- Leonard was the subject of state-wide safety flags indicating that he had threatened suicide by cop and had armed himself with a firearm;
- He had been involved in a drive-by shooting several years prior to this incident;
- Prior to the actual breach, Leonard had agreed to release the child and had come out on the porch three different times only to renege on the agreement and go back in the house with the child;
- A fence surrounded the house and impeded the officers’ ability to quickly access the porch; and
- Leonard appeared to be intoxicated and possibly suffering from an undiagnosed mental illness.
BROWN V. CITY OF COLORADO SPRINGS
Brown v. City of Colorado Springs involves a 2012 incident that took place in Colorado Springs, Colorado, where the 10th Circuit released its unpublished opinion in 2017. The facts surrounding this case begin as many of these cases do, a neighborhood dispute. Ronald Brown chased a neighborhood teen out of his yard armed with a baseball bat and threatened to kill the teen because he was climbing in Brown’s tree. The boy’s parents confronted Brown in the street; Brown pulled out a revolver and fired a shot into the ground, threatening to shoot the parents. The parents retreated to their house and called the police.
Police attempted to speak with Brown but he would not come to the door or answer their phone calls. The police left the house thinking Brown may have left the scene before they arrived. The next morning Brown contacted the police and told them he was mad because the kids were ruining his yard. Officers continued their investigation and learned Brown was a former TSA employee who was fired for threatening other employees and owned seven firearms. A neighbor advised officers that Brown sometimes goes into “war mode” and there may be a “bloodbath” if officers attempted to enter the townhouse.
Officers obtained an arrest warrant and advised Brown and his attorney that Brown should come to the station and turn himself in. Brown texted his mother that he would rather die than live with his neighbors harassing him. Based on this information, the tactical enforcement unit was called in to execute the arrest warrant at 6 p.m. The team used a number of options to contact Brown without entering the house. These attempts included use of a bull horn, cell phone calls, and the use of two robots to enter the house and make announcements. When these attempts failed to initiate contact, officers fired tear gas into the house.
Four hours into the incident officers decided that they would use an explosive device to blow a hole in the first floor so that they could see into the basement. Officers expected that Brown would have barricaded himself at the rear of the basement and the plan was to blow a hole in the living room floor at the front of the house.
At 11:55 p.m., the explosive device was detonated resulting in a hole through the living room floor and continuing through the basement ceiling. The team then sent in the robot and could see Brown lying on a bed directly beneath the hole. Team members reached Brown and determined he was wearing a ballistic vest, helmet, gas mask and ear plugs and covered in debris. He was transported to the hospital with serious injuries but survived and filed suit claiming his Fourth Amendment protections had been violated.
The defendant officers filed a summary judgment motion claiming they were entitled to qualified immunity. The trial court denied the motion, finding that while there was no precedent case clearly establishing a violation, “officers could still be held on notice that their conduct violates the Constitution in novel factual circumstances.” The trial court also denied the motion filed by the city and chief of police for the official-capacity claims determining that a jury could find that the city had a policy of inadequately training its officers. The defendants then filed this appeal to the 10th Circuit.
On appeal, the defendant officers argued that there was no case in the 10th Circuit that clearly established that the use of an explosive breaching device, under the circumstances found here, violated Brown’s Fourth Amendment protections. The plaintiff used a 10th Circuit “flashbang” case5 to support his claim that the use of the explosive breach violated Brown’s constitutional rights. The 10th Circuit disagreed, finding that “Myers doesn’t clearly establish even using flashbangs under similar facts to Brown’s would violate the Fourth Amendment.”6 The court noted the following facts to support its finding:
- The officers knew Brown was alone in the townhouse — there were no children or innocent parties present;
- Warning Brown of the impending explosion may have been counter-productive; and
- The officers believed Brown was in a different section of the basement when the device was detonated.
With respect to the official-capacity claims, the court determined it did not have authority to rule on those claims and sent the case back to the trial court with instructions to dismiss the case against the individual officers based on qualified immunity. The claims against the official-capacity defendants will continue.
POLICY IMPLICATIONS
In 2009, The Tactical Edge published the results of a survey that looked at the use of explosive breaching techniques across the country.7 One hundred and twenty-five agencies replied to the survey and several key findings of this 10-year-old survey found the following:
- There were 736 reported operational explosive breaches and over 12,000 training breaches
- Agencies reported 22 injuries — 11 during operations and 11 during training
- Six civil suits were reported
- 49% had a “written formal explosive entry SOP”
In conjunction with the survey, Deputy Sheriff Brad Gallagher announced that he would be developing an Explosive Breach Database where explosive breaching specialists could share information.8 That database is still maintained today at explosivebreachdatabase.com.
In addition, the NTOA has published a model “Tactical Explosive Entry” policy which is available in the members-only File Sharing section of the NTOA website. Hopefully, the 49 percent policy development statistic reflected in the 2009 survey has improved today. It is hard to believe that an agency utilizing explosive breaching tactics would not have a policy directly addressing this high-liability area.
POLICY AND TRAINING CONSIDERATIONS
- Your policy should identify the types of critical incidents where explosive breaching may be appropriate and it should only be considered in those circumstances where more traditional breaching methods have been deemed to be unsafe or impractical.
- The policy should limit the activity to SWAT or EOD members who have received the proper training and certifications to conduct this activity and all such personnel should be provided with appropriate safety equipment.
- All explosive breaching activities should be fully documented — both training and operational —and breachers and assistant breachers should maintain a log of all activities and training.
- Breachers and assistant breachers should maintain certification through professional training resources and the training should include legal implications.
- State or federal regulations may require members to maintain licenses for the storage, use and transport of explosives. In conclusion, we are not saying that agencies should steer clear of explosive breaching operations. However, there is more to the process than making a big bang. Policy, training and regulation requirements need to be addressed before activating an explosive breaching resource and remember that this is just one more tool in the SWAT toolbox that has its place in clearly delineated circumstances.
ABOUT THE AUTHORS
Eric P. Daigle Esq. practices civil litigation in federal and state court with an emphasis on defending municipalities and public officials. He acts as legal adviser to police departments across the country. Daigle is the Legal Section Chair for the NTOA.
Mike Whalen is a former operator and team leader with the Hartford (CT) Emergency Response Team and the control chief for the Cape Cod Regional SWAT Team. He retired after 38 years in four police agencies and is now a consultant with the Daigle Law Group LLC.
ENDNOTES
- 289 F.Supp. 3d 1182 (W.D. Washington 2018)
- 289 F.Supp. 3d 1182 at 1208
- 289 F.Supp. 3d. 1182 at 1220
- 709 Fed. Appx. 906 (10th Cir. 2017)
- United States v. Meyers, 106 F. 3d 936 (10th Cir. 1997)
- Brown v City of Colorado at p. 915
- Keith Frakes, NTOA Explosive Breaching Survey, The Tactical Edge (Spring 2009)
- Brad Gallagher, Explosive Breach Database Development, The Tactical Edge (Spring 2009)