As the number of tactical teams across the nation has increased for the past several years, the number of lawsuits being brought against tactical teams has also risen dramatically. Tactical teams often find themselves in highly publicized and high-risk situations. While teams take steps to prevent themselves from being hurt in tactical situations, tactical teams must also take steps to protect themselves from the inevitable litigation that will result from a situation where persons are injured and/or property is damaged.
Based on experiences in defending tactical teams, my law firm has developed a list of what we consider the main areas of concern addressed in almost every tactical case.
Training
The most problematic area for tactical teams is training. This is the area that should be the least vulnerable to attack in civil litigation. However, the vast majority of teams across the nation conduct SWAT training only one day per month.
The National Tactical Officers Association (NTOA) and the International Association of Chiefs of Police (IACP) are two organizations that have developed tactical team policies and procedures. While these two nationally known organizations are not legislative bodies empowered to create laws binding on all tactical teams, their procedures are designed to prevent deaths as well as litigation. Thus, their recommendations for policies and procedures should be taken seriously.
Both organizations recommend a minimum of two days per month of training time for part-time teams. Full-time tactical teams should devote at least 25 percent of their on-duty time to training.
Many agencies often argue that they cannot afford more than two days of training per month. This argument will not serve to protect the team if faced with civil litigation. Instead of arguing that you cannot allocate money to additional training, look at the training you are already conducting. If a department were to closely monitor its training, it would probably find that its officers were already receiving more than two days of training per month. Almost any training a department conducts is relevant to tactical team operations.
Destruction of Property
The courts are very cognizant of holding law enforcement officers accountable for excessive destruction of property. While damaging property does not necessarily violate the Fourth Amendment, officers are only entitled to damage that is reasonably necessary to execute a warrant.
The 1998 United States Supreme Court case of United States v. Ramirez, 523 U.S. 65, 118 S.Ct. 92, the companion case to Richard v. Wisconsin, 520 U.S. 385, 117 S.Ct.1416 (1997), addressed the issue of whether the Fourth Amendment held officers to a higher standard when a "no knock" entry resulted in the destruction of property.
In Ramirez, the suspect at issue was serving time in prison for a variety of crimes. While being transported to court for a case, Ramirez escaped from custody. He had previously escaped from custody and had previously demonstrated violence. A United States Marshal found out the suspect was staying at the Ramirez family home and obtained a "no knock" warrant for the residence.
An informant told the police that the suspect had hidden guns and drugs in the garage. On the day officers served the warrant, one officer set up a portable loudspeaker system and announced that they had a search warrant. The officers broke a window in the garage and pointed a gun through the opening to dissuade any of the residents in the garage from arming themselves.
Ramirez and his family were asleep when they heard the noise. The fugitive grabbed a gun and shot into the ceiling. The police fired back and yelled "Police." When he realized the police were present, the suspect immediately surrendered.
Ramirez was arrested for being a felon in possession of a firearm. He argued that the search was illegal because no exigent circumstances were present to justify the property damage. The trial court granted the motion to suppress the evidence obtained.
The Ninth Circuit Court of Appeals affirmed, holding that greater exigent circumstances are required for a "no knock" entry where there is property damage.
The U. S. Supreme Court took the case in an effort to clarify any misunderstandings regarding the ability of law enforcement to damage property in order to execute a search warrant. The court held, "Excessive or unnecessary destruction of property in the course of a search will violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppression."
In this case, the Supreme Court overturned the original ruling and held there was no Fourth Amendment violation. A reliable informant had notified the police that the escaped convict might be in the house and an officer confirmed this possibility. The suspect was a prison escapee with a violent past who was believed to have access to weapons. He had previously vowed never to do federal time. Thus, the police had a reasonable suspicion that knocking and announcing their presence might be dangerous.
The Court held that the conduct of the police was reasonable and caused very limited damage in order to protect themselves and others from harm.
Knock Notice Time Requirements
One of the most hotly debated issues in tactical team cases is the amount of time a team must wait before making a forcible entry if occupants do not respond to a knock notice. While there are no set rules as to the time an officer must wait before using force to enter a house, most jurisdictions hold that a 30-second delay is sufficient to meet the "knock notice" requirement. However, the actual amount of time depends on the circumstances of each case.
In United States v. Granville, 222 F.3d 1214 (9th Cir. 2000), law enforcement was investigating a large drug organization located in Oakland, Calif. A warrant was issued to search the residence of the defendant. More than 300 officers were involved in a multi-location operation.
The team leader of one group told his team the defendant had no criminal history with firearms but it was probable that guns would be at the house. With this information, the officers proceeded to the house and were unable to open the door with a passkey they had been given by the apartment manager. The officers then knocked three times and gave "knock notice." They waited five seconds before making entry.
When the officers made entry, shooting erupted and the defendant was injured. The defendant later moved to suppress the evidence found in the location. When the trial court denied the motion to suppress, the defendant filed an appeal.
In his appeal, the defendant argued that the officers had violated knock notice. Knock notice requires that an officer seeking to enter a house to execute a warrant give notice of his purpose and that authority be refused entry before forcibly entering a house.
The court agreed officers had announced their presence in this case. The question was whether they waited long enough before making a forcible entry. The court noted that a significant amount of time must lapse before officers can enter a house. In this case, five seconds was ruled not long enough.
The court held that because the warrant was served early in the morning-when the residents would most likely be sleeping-five seconds was not enough time to allow the occupants to respond. Thus, the evidence was suppressed. The court acknowledged that although there is no fixed minimum amount of time officers must wait before forcefully entering a residence, the shortest wait the court has ever upheld is 10 seconds.
A reasonable wait protects citizens and officers from violence; protects individual privacy rights; protects against needless destruction of private property; and allows innocent people to leave the premises.
In this case, the court ruled there was no evidence of exigent circumstances; the government merely relied on stereotypes that drug dealers carry guns. Because the court ruled there was no concrete information that the defendant was armed or dangerous, they found in favor of the defendant.
These are just a few of the major issues that must be addressed when dealing with tactical team liability cases. While the threat of litigation is always present, a team that is professional, carefully plans its operations, and adheres to the Fourth Amendment should be able to withstand a legal challenge.
The author is a founding member of the Los Angeles-based firm of Manning & Marder, Kass, Ellrod, Ramirez LLP, an 85-attorney firm. He has been representing tactical teams for more than 12 years.
