12‐3867 (L)
Terebesi v. Torresso, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2013
(Argued: October 10, 2013 Decided: August 21, 2014)
Docket No. 12‐3867
(consolidated with 12‐3868, 12‐3870, 12‐3898, 12‐3903,
12‐3990)
RONALD TEREBESI,
Plaintiff–Appellee,
‐ v ‐
SERGEANT JAY TORRESO, SERGEANT STEPHEN
BRENNAN, OFFICER GREGG PHILLIPSON, CHIEF
JOHN F. SOLOMON, LIEUTENANT RONALD KIRBY,
SERGEANT KENNETH JONES, OFFICER WILLIAM
RUSCOE, OFFICER BRIAN WEIR, OFFICER TODD
EDWARDS, OFFICER GREGG LEE, SERGEANT MARK
CIRILLO, OFFICER MICHAEL SWEENEY, all
individually and in their official capacities as police
officers,
Defendants–Appellants.*
* The Clerk of the Court is respectfully directed to amend
the official caption to appear as set forth above.
1
Before: SACK, CHIN, and DRONEY, Circuit Judges.
Appeal from an order of the United States District
Court for the District of Connecticut (Janet Bond
Arterton, Judge) granting in part and denying in part the
defendantsʹ motions for summary judgment based on
their assertions of qualified immunity. With respect to
the claims that are properly before us on this
interlocutory appeal, we affirm the decision of the
district court, except as to one claim of qualified
immunity, which we conclude to be meritorious and as
to which we therefore reverse. Because we conclude
that many of the defendantsʹ arguments turn on
disputed allegations of fact, we dismiss these aspects of
the appeal for lack of appellate jurisdiction. To the
extent that the appellants maintain on appeal any
state‐law arguments that do not pertain to federal
qualified immunity, they also are dismissed for lack of
jurisdiction.
RICHARD J. BURTURLA, Berchem
Moses & Devlin, P.C., Milford, CT, for
Defendant–Appellant Michael Sweeney.
ARTHUR C. LASKE, III, Laske Law
Firm, LLC, Fairfield, CT, for
Defendants–Appellants Ronald Kirby,
Kenneth Jones, William Ruscoe, Brian
Weir, Todd Edwards, and Gregg Lee.
CATHERINE S. NIETZEL, Ryan
Ryan Deluca LLP, Stamford, CT, for
Defendant–Appellant John Solomon.
ELLIOT B. SPECTOR, Noble, Spector
& OʹConnor, P.C., Hartford, CT, for
Defendant–Appellant Mark Cirillo.
2
Thomas R. Gerarde, Beatrice S.
Jordan, Howd & Ludorf, LLC,
Hartford, CT, for Defendants–
Appellants Stephen Brennan and Gregg
Phillipson.
Scott M. Karsten, Karsten & Tallberg,
LLC, West Hartford, CT, for
Defendant–Appellant Jay Torreso.
GARY A. MASTRONARDI, Law
Firm of Gary A. Mastronardi (John R.
Gulash, Gulash & Riccio, on the brief),
Bridgeport, CT, for Plaintiff–Appellee
Ronald Terebesi.
SACK, Circuit Judge:
This case arises out of a botched SWAT1‐style raid
in Easton, Connecticut, in 2008. The police obtained a
warrant to search the home of the plaintiff, Ronald
Terebesi, for a small amount of crack cocaine and drug
paraphernalia. To execute the search, police planned to
smash Terebesiʹs windows, detonate at least three stun
grenades (or ʺflashbangsʺ) inside the home, break down
the front door with a battering ram, and storm the house
with weapons drawn. In the chaos that accompanied
the implementation of this plan, the officers fatally shot
Gonzalo Guizan, Terebesiʹs houseguest, and allegedly
injured Terebesi. Both of the occupants were unarmed,
and no weapons were found in the house.
1 SWAT is the acronym for ʺSpecial Weapons and Tactics.ʺ
See, e.g., Alan D. Cohn, Mutual Aid: Intergovernmental
Agreements for Emergency Preparedness and Response, 37 Urb.
Law. 1, 45 (2005).
3
In 2009, Terebesi and Guizanʹs estate brought suit
against the officers involved in planning and executing
the raid, against the police chiefs of several
municipalities whose officers were involved, and
against the municipalities themselves, alleging, inter alia,
civil rights violations under 42 U.S.C. § 1983 and
associated state tort claims. On December 29, 2011, the
defendants moved for summary judgment, asserting
that the facts of the case and the doctrine of qualified
immunity rendered all of the plaintiffsʹ claims
unsustainable. The District of Connecticut (Janet Bond
Arterton, Judge) granted the motions in part and denied
them in part. The defendants appeal from the denial of
summary judgment. On April 11, 2013, Guizanʹs estate
notified this Court of a settlement with all defendants,
and the estate is no longer a party to this appeal.
For the reasons set forth below, we AFFIRM in
part the order of the district court, REVERSE in part, and
DISMISS the remainder of the claims for lack of
appellate jurisdiction.
BACKGROUND
On interlocutory appeal, after the denial of the
defendantsʹ motions for summary judgment, ʺwe have
jurisdiction to review a denial of qualified immunity to
the extent it can be resolved ʹon stipulated facts, or on
the facts that the plaintiff alleges are true, or on the facts
favorable to the plaintiff that the trial judge concluded
the jury might find. ʹʺ Escalera v. Lunn, 361 F.3d 737, 743
(2d Cir. 2004) (quoting Salim v. Proulx, 93 F.3d 86, 89 (2d
Cir. 1996)). We proceed to recite the factual basis of our
decision in light of this limitation.
4
Police Interactions with Terebesi
Prior to the Raid
In the weeks leading up to the raid on Ronald
Terebesiʹs house in Easton, Connecticut, local police
interacted with him on at least four occasions. Because
the defendants assert that these interactions justify the
tactics they employed in the raid, we recount them in
some detail.
On March 31, 2008, at about 2:00 a.m., Officer
Christopher Barton of the Easton Police Department was
dispatched to Terebesiʹs home in response to a 911 call
reporting that a man was having a seizure. Incident
Report, Ex. C to Defs.ʹ Local Rule 56(a)(1) Stmt., No.
3:09‐cv‐01436, ECF No. 199 (ʺIncident Reportʺ). After
knocking on the door several times with no response,
Barton and his partner entered the residence, found
Terebesi sleeping, and shook him awake. Dep. of
Christopher Barton at 18, Ex. B to Defs.ʹ Local Rule
56(a)(1) Stmt., No. 3:09‐cv‐01436, ECF No. 199 (ʺBarton
Dep. Iʺ). Easton Emergency Medical Services personnel
were also on the scene. Incident Report, at 1.
Although Terebesi was surprised and asserted that he
had not called 911, he was not confrontational and
offered no resistance as the officers and medical
personnel lifted him up from his sofa to reveal three
glass‐stem pipes and a loaded .357 caliber Smith &
Wesson pistol. Dep. of Officer Christopher Barton at
21, 26–27, Ex. 1 to Guizanʹs Local Rule 56(a)(2) Stmt., No.
3:09‐cv‐01436, ECF No. 212, (ʺBarton Dep. IIʺ); Incident
Report, at 1.
Terebesi told the officers that he kept the handgun
for his personal safety and protection, and that he had
been receiving threatening messages from ʺa pimp.ʺ
Guizanʹs Local Rule 56(a)(2) Stmt., Part I, ¶ 19, J.A. 305
(citing Terebesiʹs deposition). Barton ʺseized the gun
5
for safekeeping,ʺ and told Terebesi he would have to go
to the police station to pick it up. Barton Dep. II, at 30.
Nothing of which we are aware in the record suggests
that Terebesi retrieved the gun from the police station
any time thereafter or, in any event, before the events of
May 18, 2008.
As a result of the incident of March 31, Easton
Police obtained a warrant for Terebesiʹs arrest, and
Barton and a colleague served the warrant at Terebesiʹs
home. Guizanʹs Local Rule 56(a)(2) Stmt., Part I, ¶ 22,
J.A. 306. Terebesi went with the officers to the Easton
police station without incident. See id., ¶¶ 22–28, J.A.
306–07. While he was preparing to leave his home,
Terebesi asked the officers how long he would be gone,
expressing concern about leaving his pet macaw
unattended. Aff. of Ronald Terebesi, ¶ 16, J.A. 284–85.
Later, in a conversation during the ride to the police
station, Terebesi told Barton that he owned a
nine‐millimeter Beretta pistol, which he considered to be
a collectorʹs item and which he kept in a display case at
his parentsʹ house in nearby Trumbull, Connecticut. Id.
¶ 19(b), J.A. 286. A subsequent records check revealed
that Terebesi had registered such a pistol in 1990.
Guizanʹs Local Rule 56(a)(2) Stmt., Part II, ¶ 4, J.A. 370.
After being booked, Terebesi was released without bond
on a promise to appear. Id. ¶ 6, J.A. 370. Officers
drove him home, unrestrained, in the back of a police
car. Id., J.A. 370–71 (citing Barton Dep. II).
On May 7, 2008, at about 4:00 a.m., an
unidentified person or persons attacked Terebesiʹs
residence, firing seven blasts from a shotgun through
the windows of the house. Guizanʹs Local Rule 56(a)(2)
Stmt., Part I, ¶ 29, J.A. 307. Terebesi, who had been on
the couch watching television, crouched down and ran
into the bedroom, where he stayed until police arrived.
Aff. of Officer David Simpson ¶¶ 6–11, J.A. 168. After
6
the shooting, Barton and John Solomon, the Chief of the
Easton Police, spoke with Terebesi regarding the
incident. Although Terebesi agreed to answer their
questions, they found his responses to be unhelpful or,
in their view, untruthful. See Dep. of John Solomon at
166–69, Ex. G to Defs.ʹ Local Rule 56(a)(1) Stmt., No.
3:09‐cv‐01436, ECF No. 199 (ʺSolomon Dep.ʺ); Barton
Dep. I at 178–79, 190. Id. Later that day, Barton
convinced Terebesi to return to the police station to give
a statement. Barton Dep. II, at 51.
The following day, as police investigated the
shotgun attack, an acquaintance of Terebesi told police
that Terebesi used crack cocaine daily. Written Stmt. of
Tina T. Lamica at 3, May 8, 2008, J.A. 181–83. Then, on
May 17, 2008, a neighbor complained to police that she
had discovered a bag containing hypodermic needles in
the neighborhood, and that she had observed ʺa steady
flowʺ of traffic in and around Terebesiʹs house at odd
hours. Barton Dep. II at 65–66; Dep. of James Candee at
173–74, J.A. 188.
Barton responded to the neighborʹs complaint and
proceeded to Terebesiʹs residence to speak with him.
Id. at 66. He found the house ʺbarricaded,ʺ with the
windows covered. Id. at 72–73; see also Witness Stmt. of
Sergeant Mark Cirillo, J.A. 208 (describing the windows
as covered with plywood and blankets). After
knocking on the door and receiving no answer, Barton
returned to the police station and telephoned Terebesi
instead. Id. at 67. Terebesi denied knowing about the
bag of needles. Id. at 68. Chief Solomon later testified
that the Easton Police had had no other reports of
drug‐related activity in the neighborhood. Solomon
Dep. 520, J.A. 175.
7
Planning of the May 18 Raid
The Warrant and Tactical Team Activation
At about 9:00 a.m. on the morning of May 18, a
woman named Chandra Pankov told police that she had
been at Terebesiʹs house, and that she had personally
witnessed the use of a small quantity of drugs there.
Barton Dep. II at 117; Search and Seizure Warrant, in J.A.
417–23. Chief Solomon ordered that a search warrant
be prepared and served that day. Solomon Dep. 279.
And he requested that the Southwest [Connecticut]
Regional Emergency Response Team (ʺSWERTʺ)2 be
activated in order to assist in serving the warrant. Id. at
284. At 11:34 a.m., the Superior Court granted a search
warrant for two ʺsmall clear glass smoking pipesʺ and
ʺ[c]rack cocaine in a tin box.ʺ Search and Seizure
Warrant, in J.A. 417–23. Witnesses could not remember
another time that SWERT had been activated to seize a
personal‐use quantity of drugs. See Dep. of Michael
Sweeney at 61–63, Ex. 26 to Guizanʹs Local Rule 56(a)(2)
Stmt., No. 3:09‐cv‐01436, ECF No. 212 (ʺSweeney Dep.ʺ);
Dep. of Thomas Kiely at 23, Ex. 34 to Guizanʹs Local
Rule 56(a)(2) Stmt., No. 3:09‐cv‐01436, ECF No. 212.
2 SWERT is a specialized tactical police unit formed pursuant
to a Mutual Aid Compact among the Connecticut towns of
Easton, Trumbull, Monroe, Darien, Wilton, and Westport.
J.A. 142–45; see also Conn. Gen. Stat. § 7‐277a (setting out a
framework for these mutual agreements). SWERT is
intended to deploy specially trained police officers ʺto any
incident involving tactical operations, manmade or natural
disaster, search and rescue, dignitary protection, civil unrest,
or any situation requiring immediate augmentation of local
law enforcement personnel to preserve life and protect
property.ʺ SWERT Mutual Aid Compact Addendum, J.A.
142.
8
The Briefing
The SWERT team was fully assembled for a
briefing on the operation at about 1:00 p.m. See
Sweeney Dep. at 224. The officers were informed that
the items to be seized were two glass pipes and a tin box
containing narcotics. Dep. of Captain James Candee at
140, Ex. 2 to Pl. Rule 56(a)(2) Stmt., No. 3:09‐cv‐01436,
ECF No. 212. Solomon told the team that Terebesi was
a habitual user of crack cocaine, and that he had been the
target of a shotgun attack on May 7. Guizanʹs Rule
56(a)(2) Stmt., Part I, ¶¶ 106–07, J.A. 325. Barton, who
signed the search warrant application but did not
participate in the raid, also spoke to the SWERT team
about his previous interactions with Terebesi. Id. ¶¶
113–15, J.A. 327.
Throughout the course of this litigation, the
SWERT team defendants have emphasized in their
defense three statements made in the course of the
briefing. First, Terebesiʹs house was described as
having been ʺfortifiedʺ since the May 7 shotgun attack,
although these fortifications amounted only to plywood
affixed to the shot‐out windows and hanging blankets to
ʺcatchʺ any shotgun pellets. Witness Stmt. of Sergeant
Mark Cirillo, J.A. 208. Second, Barton told the team
about ʺthe unaccounted for Beretta that was out there,ʺ
referring to the pistol that Terebesi said he kept at his
parentsʹ house. Barton Dep. II, at 141–42. The other
officers may not have known that the pistol was not kept
in Terebesiʹs home. Finally, several defendants report
being told that Terebesi would ʺuse force to protect his
pet bird,ʺ Br. of Ronald Kirby et al., at 10, or that ʺhe
would defend this bird to the death,ʺ Br. of Mark Cirillo,
at 13. Barton testified that he told the assembled
SWERT team that Terebesi had expressed an unusual
devotion to his bird, but denied saying that Terebesi
ʺwould fight to the death or he would attack an intruder
9
over the well‐being of his bird.ʺ3 Barton Dep. II, at 141–
144.
The Raid Plan
The plan for serving the warrant was developed
by Officer William Ruscoe and Sergeant Kenneth Jones
of the Trumbull Police Department and by Sergeant
Mark Cirillo of the Darien Police Department. Pl. Rule
56(a)(2) Stmt., Part I, ¶ 124, J.A. 329–30. Lieutenant
Ronald Kirby, of the Trumbull Police, acted as the
commander of the SWERT team and reviewed and
approved the plan. Id. The plan also was subject to
the ultimate approval of John Solomon, who, as the
Easton Chief of Police, was the highest‐ranking local law
enforcement official involved in the Terebesi matter.
Id.; see also SWERT Mutual Aid Compact Addendum,
J.A. at 143 (ʺThe Team shall not commence any
operation without the authorization of the ranking local
law enforcement official at the scene.ʺ).
The plan called for a team of three officers to
approach the rear of the house and toss two stun
grenades4 through a rear window. Witness Stmt. of
Officer William Ruscoe, J.A. 197–202. This would be
3 Barton recalls Terebesi saying, during his arrest for the
March 31 incident: ʺ[T]hat birdʹs my life. I would do
anything that I needed to protect that bird.ʺ Barton Dep. II,
at 143.
4 The grenades used by the defendants go by a variety of
names, including ʺflash grenade,ʺ ʺstun grenade,ʺ
ʺconcussion grenade,ʺ ʺdistraction device,ʺ and the colloquial
ʺflashbang.ʺ See, e.g., Al Baker, The ʹFlash Bangsʹ Are Stilled,
N.Y. Times, Feb. 4, 2010, http://cityroom.blogs.nytimes.com/
2010/02/04/the‐flash‐bangs‐are‐stilled/. They ʺproduce[ ] a
brilliant flash and a loud noise designed to stun and disorient
persons nearby, making resistance less likely.ʺ United States
v. Jones, 214 F.3d 836, 837 (7th Cir. 2000).
10
the first time SWERT had ever used stun grenades in an
operation. Guizanʹs Rule 56(a)(2) Stmt., Part II, ¶ 88,
J.A. 395. Another group of officers would knock loudly
at the front door, announce their presence, and then, if
necessary, break the door down with a battering ram.
Witness Stmt. of Officer William Ruscoe, J.A. 197–202.
After the door was breached, one team member would
toss in another stun grenade, and a group of officers
would rush in and restrain anyone in the house. Id.
Police refer to this kind of raid (euphemistically) as a
ʺdynamic entry.ʺ See generally Karan R. Singh, Note,
Treading the Thin Blue Line: Military Special‐Operations
Trained Police SWAT Teams and the Constitution, 9 Wm. &
Mary Bill of Rts. J. 673, 682–83 (2001).
Not all the team members were satisfied with this
plan. Sergeant John Lawlor and Officer Michael
Redgate told Mark Cirillo that a dynamic entry was too
dangerous for a drug warrant. Dep. of John Lawlor at
32–34, Ex. 9 to Guizanʹs Local Rule 56(a)(2) Stmt., No.
3:09‐cv‐01436, ECF Doc. No. 212 (ʺLawlor Dep.ʺ); Dep. of
Michael Redgate at 33–35, Ex. 8 to Guizanʹs Local Rule
56(a)(2) Stmt., 3:09‐cv‐01436, ECF Doc. No. 212; Dep. of
Mark Cirillo at 146, Ex. 17 to Guizanʹs Local Rule 56(a)(2)
Stmt., No. 3:09‐cv‐01436, ECF Doc. No. 212; Witness
Stmt. of Sergeant Mark Cirillo, J.A. 209. Lawlor
testified that Cirillo attempted to have the plan changed,
but did not succeed. Lawlor Dep. at 34, 47; see also
Witness Stmt. of Sergeant Mark Cirillo, J.A. 209.
The Raid
The operation began at about 2:00 p.m. on May 18,
2008. Throughout the short raid and its aftermath,
Lieutenant Ronald Kirby recorded a video of the event
from the exterior of the home. Although little can be
seen of the raid from that viewpoint, the recording
purportedly contains a complete audio record of the
11
raid, including the successive stun grenade detonations
and a series of gunshots.
At the beginning of the operation, Sergeant Jay
Torreso, of the Monroe Police, and Officer Gregg
Phillipson and Lieutenant Stephen Brennan, of the
Wilton Police, moved to the rear of the house. See
Guizanʹs Local Rule 56(a)(2) Stmt., Part II, ¶¶ 116–119,
J.A. 403. Phillipson broke a window and separated the
curtains inside, allowing the other officers to toss their
stun grenades into the house. Id. ¶ 117, J.A. 403.
Either immediately before or at the same time as the first
stun grenade detonated, Brennan began shouting,
ʺPolice! Police with warrant! Hands up!ʺ Id., ¶¶ 113,
119, J.A. 402–03.
Meanwhile, the other team members moved to the
front door and announced their presence. Id. ¶ 123, J.A.
404. The parties dispute what happened next. The
defendants assert that Officer Gregg Lee checked to see
whether the door was locked, knocked on the door and
announced the officersʹ presence, and then waited
several seconds for the occupants to respond before
Officer Todd Edwards breached the door. Defs.ʹ Local
Rule 56(a)(1) Stmt., ¶ 148, J.A. 133. But the plaintiffs
pointed out that only 7.194 seconds5 elapsed between
the detonation of the second stun grenade, which was
thrown from the rear of the house, and the detonation of
the third stun grenade, which would have been thrown
by the front‐entry team after breaching the door.
Guizanʹs Local Rule 56(a)(2) Stmt., Part II, ¶ 124, J.A. 404.
Because a stun grenade takes 1.5 seconds to detonate,
the plaintiffs argued, the front entry team had only 5.694
seconds to open the screen door, check to see whether
5 The timing is taken from time stamps on the video
recording, which was prepared by the plaintiffʹs expert and
which purports to provide times with that level of precision.
12
Terebesiʹs door was locked, knock, announce, wait for a
response, breach the door, look inside the room, and
then throw a stun grenade. Id. ¶¶ 124–25, J.A. 404.
The plan called for six officers to enter
sequentially, most brandishing weapons and wearing
body armor. Defs.ʹ Local Rule 56(a)(1) Stmt., ¶¶ 152–56
162, J.A. 134–35, 137. Michael Sweeney of the Monroe
Police was to enter the apartment first, wearing full
ballistic body armor and a Kevlar helmet and carrying a
ballistic shield and a Glock semiautomatic pistol. Id.,
¶¶ 152, 162, J.A. 134, 137. Officer Brian Weir of the
Trumbull Police would follow, carrying a rifle. Id. ¶
153, J.A. 134. Officer Donald Allen would be third,
followed by Officer Kenneth Jones, who would carry a
Taser—a ʺless [than] lethal option.ʺ Id. ¶¶ 154–55, J.A.
134–35. Ruscoe and Cirillo, designated ʺteam field
leaders,ʺ would be the fifth and sixth officers to enter the
house. Id. ¶ 156, J.A. 135.
The police officersʹ testimony was not entirely
consistent with respect to what the plan required once
the team had breached the door. Ruscoe, one of the
planners, stated that none of the team members was to
enter the house until after the third stun grenade was
deployed. Written Stmt. of Officer William Ruscoe, J.A.
198. Officer Michael Sweeney, the first in the entry
team, said that the plan required him to enter the room
before the third stun grenade detonated. Sweeney Dep.
246–47, J.A. 227. If Sweeney encountered any
occupants once inside the house, his orders were to ʺpinʺ
them with his shield. Id. at 316, J.A. 238.
Irrespective of the plan, the parties now agree that
Sweeney entered the house before the third stun
grenade detonated. E.g., Guizanʹs Local Rule 56(a)(2)
Stmt., Part I, ¶ 162, J.A. 353. Upon entering, Sweeney
saw two men in the far right corner of the room,
13
crouching, extending their arms, and screaming.
Sweeney Dep. 271–74, J.A. 233–34. Sweeney testified at
his deposition that when the third stun grenade went
off, he felt projectiles striking his boot and his shield,
and he ʺthought [he] was taking fire.ʺ Id. at 249–50, J.A.
228. He further testified that he felt Terebesi push and
pull on his shield, and his pistol being pulled downward
and away. Id. at 322–23, 329–30, J.A. 240–42. Sweeney
fired his pistol for the first time as the third stun grenade
detonated. Guizanʹs Local Rule 56(a)(2) Stmt., Part II, ¶
113, J.A. 402. He then fired repeatedly until he
regained control of his weapon. Sweeney Dep. 331, J.A.
242. These shots hit Guizan several times, killing him.
Defs.ʹ Local Rule 56(a)(1) Stmt., ¶ 179, J.A. 139. During
the commotion, Weir fired one shot into the floor.
Guizanʹs Local Rule 56(a)(2) Stmt., Part II, ¶ 142, J.A. 409.
The plaintiffs disputed Sweeneyʹs testimony,
arguing that no struggle took place, that there was no
time for any struggle, and that the forensic evidence
does not support Sweeneyʹs description of events. The
defendantsʹ forensic expert stated that, at the time at
least some of the shots were fired, Guizanʹs left hand
was within a distance of Sweeneyʹs weapon that was
ʺgreater than actual contact but less than twelve inches.ʺ
Id. ¶ 180, J.A. 139. The plaintiffs did not dispute the
distance, but argue that the forensic evidence suggests
that at the time of the shooting, Guizan was on the floor,
sitting or lying on his back, with his hands turned away
from Sweeney. Guizanʹs Local Rule 56(a)(2) Stmt., Part
II, ¶ 131, J.A. 405–06.
After he stopped shooting, Sweeney fell on top of
Terebesi, pinning him with his shield. Defs.ʹ Local Rule
56(a)(1) Stmt., ¶ 176, J.A. 139. Terebesi alleges that,
while he was pinned to the floor, someone, who he now
thinks was Sweeney, struck him with a firearm.
Terebesiʹs Rule 56(a)(2) Stmt., ¶ 204, J.A. 276. Terebesi
14
claims that the entire incident exacerbated his
pre‐existing post‐traumatic stress disorder and caused
injuries to his head, neck, and extremities. Id. ¶ 205,
J.A. 278–79. The detonation of the stun grenades also
started a fire in Terebesiʹs home, although the resulting
damage was apparently not extensive. See id.
After the raid, the police searched the residence,
recovering some drug paraphernalia with powder
residue and ʺpieces of brown rock[‐]like substanceʺ
totaling 0.020 ounces.6 Search and Seizure Warrant,
J.A. 417‐423. No firearms were found.
Procedural History
In 2009, Terebesi and Guizanʹs estate filed
separate complaints in the District of Connecticut
against the police officers involved in the raid and in
obtaining the search warrant, against the police chiefs of
the departments participating in SWERT, and against
the municipalities in which the departments were
located. The two cases eventually were consolidated.
The complaints included: (i) section 1983 claims for
6 To provide context, we note that although doses—ʺrocksʺ—
of crack cocaine are sold by size, rather than by weight, see
United States v. Wright, 131 F.3d 1111, 1113 (4th Cir. 1997), the
weight of a typical dose appears to vary from 0.1 to 0.25
grams (0.0035–0.0088 ounces), see, e.g., United States v.
Ramirez‐Negron, 751 F.3d 42, 46 (1st Cir. 2014); United States v.
Barrow, 287 F.3d 733, 737 (8th Cir. 2002); United States v.
Steward, 252 F.3d 908, 909 (7th Cir. 2001); Caleb Mason, Jay
Zʹs 99 Problems, Verse 2: A Close Reading with Fourth
Amendment Guidance for Cops and Perps, 56 St. Louis U. L.J.
567, 570 n.14 (2012) (noting that ʺrocksʺ vary ʺsomewhat in
weight, but a tenth of a gram is a good rule of thumbʺ).
Assuming that the substance recovered was crack cocaine,
the reported amount recovered was therefore roughly
equivalent to two to six doses.
15
violations of the plaintiffsʹ rights under the Fourth and
Fourteenth Amendments based on the defendants
obtaining the search warrant and their planning and
execution of the raid; (ii) section 1983 claims against the
towns and police chiefs for failure to train and for
unconstitutional policies and procedures; and (iii) state
law claims for negligence. The plaintiffs sought
compensatory and punitive damages, costs, and
attorneyʹs fees.
In December 2011, the defendants moved for
summary judgment, alleging, among other things, that
the claims were barred by federal and state doctrines of
qualified immunity. On August 29, 2012, the district
court partly granted and partly denied these motions.
Guizan v. Town of Easton, No. 3:09‐cv‐1436(JBA), 2012 WL
3775876, 2012 U.S. Dist. LEXIS 123727 (D. Conn. Aug. 29,
2012). The court concluded that the department
lawfully procured the search warrant and granted
summary judgment to the defendants on that claim.
But it denied summary judgment with respect to the
plaintiffsʹ other section 1983 and state tort claims against
the raid participants and planners. The district court
also granted summary judgment in favor of the police
chiefs on the failure‐to‐train claims, but allowed the
municipal liability claims to proceed.
The individual officers then filed this
interlocutory appeal challenging the district courtʹs
denial of summary judgment concerning their assertions
of qualified immunity.7 On April 11, 2013, the estate of
Gonzalo Guizan notified this Court of an impending
settlement with all appealing defendants. In July, we
ordered that the appeal be withdrawn as to the estate,
The Town of Darien initially joined this appeal, but
7
withdrew on March 21, 2013.
16
and that the appeal proceed only with respect to
Terebesi. We heard argument on October 10, 2013.
DISCUSSION
On appeal, the defendants make three arguments:
first, that Terebesiʹs claims for excessive force arising out
of the activation of SWERT, the raid plan, the so‐called
ʺdynamic entry,ʺ the use of stun grenades, and
Terebesiʹs encounter with Officer Michael Sweeney are
all barred by the doctrine of qualified immunity, and
that their actions were objectively reasonable; second,
that they complied with any requirements of the Fourth
Amendment ʺknock‐and‐announceʺ rule, and that they
were in any case entitled to qualified immunity on this
claim; and, third, that they were entitled to
governmental immunity under Connecticut law for
Terebesiʹs negligence claims.8
I. Appellate Jurisdiction9
and Standard of Review
This appeal comes to us from the denial of a
motion for summary judgment, which ordinarily is not
an appealable final order. See 28 U.S.C. § 1291 (limiting
jurisdiction to ʺappeals from . . . final decisionsʺ of a
district court); Coopers & Lybrand v. Livesay, 437 U.S. 463,
467 (1978) (same). We may nevertheless entertain
appeals from interlocutory orders in the narrow class of
8 Defendant Solomon also argued in his brief that the
plaintiffs failed to establish the necessary elements for
intentional infliction of emotional distress. At oral
argument, Solomonʹs counsel indicated that the defendant
was no longer pursuing this argument on appeal.
9 We have the ʺindependent obligation to consider the
presence or absenceʺ of appellate jurisdiction, even if the
appellee has not raised the issue. Joseph v. Leavitt, 465 F.3d
87, 89 (2d Cir. 2006), cert. denied, 549 U.S. 1282 (2007).
17
cases in which rights ʺwill be irretrievably lost in the
absence of an immediate appeal.ʺ Wabtec Corp. v.
Faiveley Transport Malmo AB, 525 F.3d 135, 138 (2d Cir.
2008) (internal quotation marks omitted). Because
federal qualified immunity supplies not only a bar to
liability but also an ʺentitlement not to stand trial or face
the other burdens of litigation,ʺ Mitchell v. Forsyth, 472
U.S. 511, 526 (1985), the Supreme Court and the federal
courts of appeals allow some interlocutory appeals from
district court decisions rejecting defenses of qualified
immunity as a ʺlimited exceptionʺ to the final judgment
rule, Grune v. Rodriguez, 176 F.3d 27, 32 (2d Cir. 1999)
(internal quotation marks omitted).
A district courtʹs denial of qualified immunity on
a summary judgment motion is an appealable final
decision only ʺto the extent the denial turns on an issue
of law.ʺ McCullough v. Wyandanch Union Free Sch. Dist.,
187 F.3d 272, 277 (2d Cir. 1999); accord Mitchell, 472 U.S.
at 530. Appealable matters involve ʺdisputes about the
substance and clarity of pre‐existing law,ʺ not about
ʺwhat occurred, or why an action was taken or omitted.ʺ
Ortiz v. Jordan, 131 S. Ct. 884, 892 (2011) (citing Behrens v.
Pelletier, 516 U.S. 299, 313 (1996), and Johnson v. Jones, 515
U.S. 304, 317 (1995)).
Where factual disputes persist, we may exercise
appellate jurisdiction only for the limited purpose of
deciding whether, on the basis of ʺstipulated facts, or on
the facts that the plaintiff alleges are true, or on the facts
favorable to the plaintiff that the trial judge concluded
the jury might find, the immunity defense is established
as a matter of law.ʺ Salim v. Proulx, 93 F.3d 86, 90 (2d
Cir. 1996). Our review is thus limited to the
defendantʹs arguments that these ʺfacts show either that
he ʹdidnʹt do itʹ or that it was objectively reasonable for
him to believe that his action did not violate clearly
established law.ʺ Id. at 90–91. In considering these
18
questions, ʺwe will disregard any disputed facts or facts
that contradict [the plaintiffʹs] version of events.ʺ
Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 761
(2d Cir. 2003). And while ʺwe have jurisdiction to
determine whether the issue is materialʺ to the legal
issues properly before us, we may not review ʺwhether
it is genuine.ʺ Bolmer v. Oliveira, 594 F.3d 134, 140‐41 (2d
Cir. 2010) (emphasis in original); see also Droz v.
McCadden, 580 F.3d 106, 108 (2d Cir. 2009) (per curiam)
(ʺʹ[W]e may not review whether a dispute of fact
identified by the district court is truly genuine.ʹʺ
(quoting Escalera, 361 F.3d at 743)), cert. denied, 559 U.S.
1031 (2010). Within these constraints, ʺour review is de
novo.ʺ Bolmer, 594 F.3d at 141.
The defendants here allege at least some qualified
immunity defenses over which we may properly
exercise appellate jurisdiction: inter alia, that the relevant
law was not clearly established, that the application of
the Fourth Amendment to certain conduct has not been
established, and that the facts as alleged by the plaintiff
demonstrate the objective reasonableness of the
defendantsʹ actions. Some of the defendantsʹ
arguments depend, however, on their versions of
contested facts, or on the district courtʹs determinations
of evidentiary sufficiency—questions over which we
have no jurisdiction. We will therefore continue our
jurisdictional inquiry in the course of reviewing the
merits of the defendantsʹ appeals.
II. Principles of Qualified Immunity
Federal law provides a private right of action for
money damages against state officials, acting ʺunder
colorʺ of law, who violate a constitutional or statutory
right. 42 U.S.C. § 1983; see also Camereta v. Greene, 131 S.
Ct. 2020, 2030 (2011). But the doctrine of qualified
immunity shields both state and federal officials from
19
suit ʺunless [1] the official violated a statutory or
constitutional right that [2] was clearly established at the
time of the challenged conduct.ʺ10 Reichle v. Howards,
132 S. Ct. 2088, 2093 (2012); see also Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982) (setting out the standards for
qualified immunity); Matusick v. Erie Cnty. Water Auth.,
__ F.3d __, 2014 WL 700718, at *18 & n.15, 2014 U.S. App.
LEXIS 3683, at *59 & n.15 (2d Cir. Jan. 3, 2014)
(discussing the scope of the two‐prong inquiry). This
doctrine balances ʺthe need to hold public officials
accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction,
and liability when they perform their duties
reasonably.ʺ Pearson v. Callahan, 555 U.S. 223, 231
(2009).
Official conduct violates clearly established law
ʺwhen, at the time of the challenged conduct, ʹthe
contours of a right are sufficiently clearʹ that every
ʹreasonable official would have understood that what he
is doing violates that right.ʹʺ Ashcroft v. al‐Kidd, 131 S. Ct.
2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987) (brackets omitted)). The purpose of the
doctrine is to ensure that the official being sued had ʺfair
warningʺ that his or her actions were unlawful. Hope v.
Pelzer, 536 U.S. 730, 739–40 & n.10 (2002). To this end, a
plaintiff need not show a case ʺdirectly on point, but
existing precedent must have placed the statutory or
constitutional question beyond debate.ʺ11 al‐Kidd, 131 S.
We may exercise our ʺsound discretion in deciding which
10
of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the
particular case at hand.ʺ Pearson v. Callahan, 555 U.S. 223,
236 (2009) (modifying Saucier v. Katz, 533 U.S. 194 (2001)).
The precedent establishing a constitutional right must be
11
more precise than, for example, the ʺbroad history and
purposes of the Fourth Amendment.ʺ al‐Kidd, 131 S. Ct. at
20
Ct. at 2083; accord Stanton v. Sims, 134 S. Ct. 3, 5 (2013)
(per curiam); Fabrikant v. French, 691 F.3d 193, 213 (2d Cir.
2012).
To determine whether the relevant law was
clearly established, we consider the specificity with
which a right is defined, the existence of Supreme Court
or Court of Appeals case law on the subject, and the
understanding of a reasonable officer in light of
preexisting law. See Scott v. Fischer, 616 F.3d 100, 105
(2d Cir. 2010). Even if this Court has not explicitly held
a course of conduct to be unconstitutional, we may
nonetheless treat the law as clearly established if
decisions from this or other circuits ʺʹclearly foreshadow
a particular ruling on the issue.ʹʺ12 Id. (quoting Varrone
2084 (warning courts ʺnot to define clearly established law at
a high level of generalityʺ) (internal quotation marks
omitted). But, in some cases, a generally phrased statement
of the law may provide sufficient warning that the
defendantʹs conduct is unconstitutional. See Hope, 536 U.S.
at 741 (ʺ[G]eneral statements of the law are not inherently
incapable of giving fair and clear warning, and in other
instances a general constitutional rule already identified in
the decisional law may apply with obvious clarity to the
specific conduct in question, even though the very action in
question has not previously been held unlawful.ʺ (quoting
United States v. Lanier, 520 U.S. 259, 270‐71 (1997)) (internal
quotation marks and brackets omitted)). The ʺsalient
question . . . is whether the state of the law [at the time of the
act] gave [the defendants] fair warning that their alleged
treatment of [the plaintiff] was unconstitutional.ʺ Id.
We do not think that, as some decisions in this Circuit have
12
suggested, ʺ[o]nly Supreme Court and Second Circuit
precedent existing at the time of the alleged violation is
relevant in deciding whether a right is clearly established.ʺ
Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004) (emphasis
added) (citing Townes v. City of New York, 176 F.3d 138, 144
21
v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997)); see also Weber v.
Dell, 804 F.2d 796, 801 n.6, 803‐04 (2d Cir. 1986) (looking
to decisions of other circuits for clearly established law),
cert. denied, 483 U.S. 1020 (1987).
III. Excessive Force Claims
The Fourth Amendment governs ʺthe
reasonableness of the manner in which a search or
seizure is conducted.ʺ Tennessee v. Garner, 471 U.S. 1,
7‐8 (1985); see also U.S. Const. amend. IV (ʺThe right of
the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures,
shall not be violated . . . .ʺ). Determining whether a use
of force was ʺreasonableʺ under the Fourth Amendment
ʺrequires a careful balancing of the nature and quality of
the intrusion on the individualʹs Fourth Amendment
interests against the countervailing governmental
interests at stake.ʺ Graham v. Connor, 490 U.S. 386, 396
(1989) (internal quotation marks omitted). We ask
ʺwhether the officersʹ actions are objectively reasonable
in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.ʺ
Id. at 397 (internal quotation marks omitted). In doing
(2d Cir. 1999), cert. denied, 528 U.S. 964). (The author of this
opinion was a member of the panel in Moore.) Townes
correctly stated that we consider ʺwhether the Supreme
Court or the Second Circuit had affirmed the existence of the
right,ʺ Townes, 176 F.3d at 144, but the opinion also made
clear that, ʺ[e]ven in the absence of binding precedent, a right
is clearly established if the contours . . . are sufficiently clear
that a reasonable official would understand that what he is
doing violates that right.ʺ Id. (citing Anderson, 483 U.S. at
640) (internal quotation marks and brackets omitted).
Though not directly binding on this Court, the decisions of
other circuits may reflect that the contours of the right in
question are clearly established.
22
so, we consider ʺthe severity of the crime at issue,
whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.ʺ
Id. at 396.
This appeal concerns the reasonableness of the
raid plan, the decision to use SWERT to effect the search,
the use of stun grenades in the raid, and the actions of
defendants Sweeney and Weir upon entering Terebesiʹs
residence. We reverse the district court on one point:
insofar as it denied summary judgment to Chief
Solomon on the issue of his decision to activate SWERT
in connection with the search, we conclude that the
relevant law was not clearly established. But for the
reasons stated below and to the extent that the
defendantsʹ appeals are properly before this Court, we
affirm the district courtʹs denial of summary judgment
as to all defendants on all other excessive force claims.
A. SWERT Activation
The plaintiffʹs theory of excessive force includes
two claims relating to decisions that took place prior to
the raid. In one claim, the plaintiff argues that the
defendants who developed and approved the raid plan
are liable for authorizing an excessive use of force in
effecting a search and seizure. This claim concerns the
details of the raid plan, and we address it below, in part
III.B. Separately, the plaintiff argues that Solomon is
liable for authorizing a use of excessive force because he
decided to serve the search warrant using a SWAT team
rather than ordinary uniformed officers. This claim
asserts that the decision to deploy a tactical team can,
under certain circumstances, constitute an
unconstitutional use of force, regardless of the details of
the planned operation. We find that Solomon is
23
entitled to qualified immunity with respect to this
decision.
At least two circuits and one decision from the
District of Connecticut have suggested that the decision
to employ a tactical team may violate the Fourth
Amendmentʹs prohibition on excessive force.13 See
Estate of Smith v. Marsaco, 430 F.3d 140, 149‐50 (3d Cir.
2005); Holland ex rel. Overdorff v. Harrington, 268 F.3d
1179, 1189–90 (10th Cir. 2001), cert. denied, 535 U.S. 1056
(2002); Warren v. Williams, No. Civ. 03:40CV537 (JCH),
2006 WL 860998, at *27, 2006 U.S. Dist. LEXIS 18900, at
*82–*84 (D. Conn. Mar. 31, 2006). The district court
referred to these decisions in denying summary
judgment on this issue. Guizan, 2012 WL 3775876, at
*11, 2012 U.S. Dist. LEXIS 123727, at *31‐*32.
In November 2012—after the district courtʹs
decision in this case, but before the appeal was
briefed—a panel of this Court determined that ʺthere
was no ʹclearly establishedʹ right in this Circuit to be free
from the deployment of a police SWAT team.ʺ
Fortunati v. Vermont, 503 F. Appʹx 78, 81 (2d Cir. 2012)
(non‐precedential summary order). In that case,
13 These decisions do not necessarily distinguish between
claims arising out the decision to deploy a SWAT team and
claims arising out a particular plan for executing a search
warrant. See Holland, 268 F.3d at 1189 (whether raid
planning, which included the use of a SWAT team, violated
the Fourth Amendment); Warren, 2006 WL 860998, at *27,
U.S. Dist. LEXIS 18900, at *82 (assessing ʺthe decision itself by
law enforcement to use ʹdynamic entryʹ (i.e., a ʹSWAT
teamʹ)ʺ). Insofar as these decisions are premised on the
substance of the planned operation, rather than on the mere
decision to use a tactical team, we think that they provide
further support for our decision in part III.B. to affirm the
denial of qualified immunity for the plaintiffʹs planning
claim.
24
members of a police tactical team fatally shot a man who
was known to be ʺarmed and unstable,ʺ who was at
large in the woods, and who had threatened family
members at gunpoint hours before the shooting.
Fortunati v. Campagne, 681 F. Supp. 2d 528, 532‐34, 544
(D. Vt. 2009), affʹd, 503 F. Appʹx 78 (2d Cir. 2012).
Unlike in the case at bar, the challenged decision to
deploy a tactical team to take the decedent into custody
was made in response to an ongoing and evolving
situation, not in the context of the planned execution of a
search warrant. Although the district court found a
triable issue of fact as to whether it was reasonable to
deploy the tactical team, id. at 544, both the district court
and this Court agreed that the law on SWAT team
deployment was not clearly established in this Circuit.
Id.; Fortunati, 503 F. Appʹx at 81.
We agree that there is no clearly established right
in this Circuit to be free from the deployment of a
tactical team in general.14 Fortunati, 503 F. Appʹx at 81.
We of course recognize that this Circuitʹs order in
Fortunati is not binding precedent. See United States v.
Cassesse, 685 F.3d 186, 191 n.4 (2d Cir. 2012). But in the
context of qualified immunity determinations, police
officers are not ʺexpected to predict the future course of
constitutional law,ʺ and ʺit is unfair to subject police to
money damages for picking the losing side of the
14 We would, in any event, be hesitant to craft a rule that
would attach to any decision to deploy a tactical team,
regardless of the context and substance of the planned
operation. A SWAT team might be properly activated for any
number of reasons, some of which we could not anticipate in
any single case. E.g., Fortunati, 681 F. Supp. 2d at 532–34;
Phillips v. James, 422 F.3d 1075, 1082 (10th Cir. 2005)
(concluding that it was not unreasonable for a police officer
to activate a SWAT team to secure the perimeter of a possible
crime scene in support of other police operations).
25
controversy.ʺ Wilson v. Layne, 526 U.S. 603, 617–18
(1999) (internal quotation marks omitted). It is difficult
to ask that a police officer identify clearly established
law that three judges of this Court could not find. We
therefore reverse the decision of the district court insofar
as it denied qualified immunity to Chief Solomon for his
decision to call out a tactical team in connection with the
search of Terebesiʹs home.
We stress that our reversal relates only to the
decision to deploy SWERT to execute the search
warrant. Neither Solomon nor any other defendant is
qualifiedly immune at the summary judgment stage
from any Fourth Amendment liability he may otherwise
have in connection with the planning of the raid,
including any liability for authorizing or directing the
team members to carry out the search in an unlawful
manner or for failing to intervene in constitutional
violations committed by others. See infra, Parts III.B., V.
B. Raid Plan
The defendants15 argue that, because a seizure
has yet to take place at the time a raid plan is
formulated, planning activity is governed solely by the
Fourteenth Amendmentʹs Due Process Clause, which is
ʺviolated by executive action only when it can properly
be characterized as arbitrary, or conscience shocking, in
a constitutional sense.ʺ Cnty. of Sacramento v. Lewis, 523
U.S. 833, 847 (1998). This argument relies on a
selective—and incorrect—reading of the case law. We
The plaintiffʹs claims relating to the raid plan apply to
15
Cirillo, Jones, and Ruscoe, who formulated the plan; to Kirby,
who reviewed and approved the plan; and to Solomon, who
exercised the ultimate authority to approve and direct the
plan. The plaintiff also claims that all defendants are liable
for failing to intervene with respect to the raid plan; this
aspect of the claim is addressed below.
26
agree instead with the district court that officers who
authorize or direct the use of force in effecting a search
or seizure must comply with the Fourth Amendment in
doing so. And, viewing the facts in the light most
favorable to Terebesi, we conclude that his claims in this
respect were sufficient to withstand the defendantsʹ
claims of qualified immunity at the summary judgment
stage.
A plaintiff is permitted to bring suit under section
1983 against ʺ[e]very person who . . . causes [him] to be
subjectedʺ to a deprivation of constitutional rights. 42
U.S.C. § 1983; Rizzo v. Goode, 423 U.S. 362, 370 (1976).
Section 1983 does not give rise to respondeat superior
liability against the employer of a person who infringes
upon anotherʹs constitutional rights. Iqbal, 556 U.S. at
676. But a supervisor may be held liable if he or she
was personally a ʺdirect participantʺ in the
constitutional violation. Richardson v. Goord, 347 F.3d
431, 435 (2d Cir. 2003) (per curiam). In this Circuit, a
ʺdirect participantʺ includes a person who authorizes,
orders, or helps others to do the unlawful acts, even if he
or she does not commit the acts personally. Provost v.
City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001); see also
Gronowski v. Spencer, 424 F.3d 285, 293–94 (2d Cir. 2005)
(addressing a city mayorʹs role in allegedly
unconstitutional retaliation against the plaintiff, a
former city employee).
This principle is often reflected in our cases
concluding that a defendant in a section 1983 suit ʺdid
not engage in or authorize any of the brutalities alleged.ʺ
Al‐Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065–66 (2d
Cir. 1989) (emphasis added) (concerning a plan to retake
the Attica prison from rioting inmates); see also Rizzo, 423
U.S. at 371 (stressing that there was no evidence
showing the defendantsʹ ʺauthorization or approvalʺ of
misconduct); Williams v. Vincent, 508 F.2d 541, 546 (2d
27
Cir. 1974) (rejecting claim because it did not allege
authorization of specific conduct). Other circuits that
have addressed excessive force claims like Terebesiʹs
have reached similar conclusions. See, e.g., Backes v.
Village of Peoria Heights, 662 F.3d 866, 869–71 (7th Cir.
2011) (concluding that, while police chief might have
been liable if he had approved a raid plan that involved
excessive force, he had instead deferred to an outside
tactical team over which he had no authority); Santiago v.
Warminster Township, 629 F.3d 121, 129 (3d Cir. 2010)
(claim that defendants ʺcreat[ed] and authorize[ed]ʺ a
raid plan that directed other officers to use excessive
force was distinct from a theory of respondeat superior
and was permissible under § 1983); Watkins v. City of
Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998) (stating that,
supervisorʹs liability for an officerʹs use of excessive
force ʺhinges on whether he set in motion a series of acts
by others . . . which he knew or reasonably should have
known[ ] would cause others to inflict the constitutional
injuryʺ (internal quotation marks omitted)).
Our case law thus clearly establishes that planners
may be liable under section 1983 to the extent that a plan
for a search or seizure, as formulated and approved by
those defendants, provides for and results in an
unconstitutionally excessive use of force. See, e.g.,
Provost, 262 F.3d at 155. We therefore reject the
defendantsʹ assertions that the law in this respect is not
clearly established.16 A defendant who plans or directs
The defendantsʹ reliance on this Courtʹs opinion in Salim,
16
93 F.3d 86, is misplaced. That case arose from an officerʹs
pursuit and eventual fatal shooting of a 14‐year‐old boy who
had recently escaped from juvenile detention. Id. at 88.
The plaintiff (the boyʹs mother) alleged that the officer had
himself ʺcreated the situation in which the use of deadly
force became necessaryʺ by violating police procedure in
several respects in advance of the shooting. Id. at 92. We
28
an unreasonable use of force is liable for the resulting
constitutional violation as a ʺdirect participa[nt].ʺ Id.
determined that these alleged failings were irrelevant
because the Fourth Amendment reasonableness inquiry
ʺdepends only on the officerʹs knowledge of circumstances
immediately prior to and at the moment that he made the
split‐second decision to employ deadly force.ʺ Id.
Salim is consistent with a group of ʺpre‐seizure
conductʺ cases from other circuits. See generally Aaron
Kimber, Note, Righteous Shooting, Unreasonable Seizure? The
Relevance of an Officerʹs Pre‐Seizure Conduct in an Excessive
Force Claim, 13 Wm. & Mary Bill Rts. J. 651 (2004) (collecting
cases). The common thread in these cases is the plaintiffsʹ
attempt to argue that a use of force that might appear
reasonable if considered in isolation was in fact unreasonable
because the officersʹ prior conduct created the danger of
escalation. See Schulz v. Long, 44 F.3d 643, 647 (8th Cir. 1995)
(officersʹ interactions with mentally ill suspect allegedly ʺset
in motion a chain of events which culminated in [plaintiff]
being shotʺ); Carter v. Buscher, 973 F.2d 1328 (7th Cir. 1992)
(ill‐conceived ruse, which did not contemplate excessive
force, provoked deadly confrontation); Fraire v. City of
Arlington, 957 F.2d 1268 (5th Cir.) (failure to follow police
procedure in pursuit of suspect not relevant to deadly force
claim), cert. denied, 506 U.S. 973 (1992); Greenidge v. Ruffin, 927
F.2d 789 (4th Cir. 1991) (violations of procedure for nighttime
prostitution arrests created more dangerous situation). In
cases like these, courts in this Circuit and others have
discarded evidence of prior negligence or procedural
violations, focusing instead on ʺthe split‐second decision to
employ deadly force.ʺ Salim, 93 F.3d at 92.
This is not such a case. The plaintiff does not allege
that the defendants improperly contributed to the likelihood
of a deadly confrontation between the officers and the
occupants of the Terebesi home. Rather, he alleges that the
raid as planned, even if it had gone perfectly and not ended in
Guizanʹs death, constituted an unreasonable use of force
against his person and his home.
29
Terebesi alleges that the raid plan here
contemplated a seizure of his person,17 and that, as
formulated (and ultimately executed), the planned use
of force was excessive. By formulating and approving
the plan, Terebesi contends, defendants Cirillo, Jones,
Kirby, Ruscoe, and Solomon authorized or assisted in
effecting a seizure involving excessive force.
Even if the plan expressly contemplated only a
search, the same Fourth Amendment protections would
apply. See United States v. Ramirez, 523 U.S. 65, 71 (1998)
(ʺThe general touchstone of reasonableness which
governs Fourth Amendment analysis governs the
method of execution of [a search] warrant.ʺ (citation
omitted)). As with a seizure, the use of excessive force
in the conduct of the search may render the policeʹs
actions unreasonable. See, e.g., Los Angeles Cnty. v.
Rettele, 550 U.S. 609, 614 (2007) (per curiam) (applying
Fourth Amendment test of reasonableness to police
conduct in executing a search warrant); Boyd v. Benton
Cnty., 374 F.3d 773, 779‐80 (9th Cir. 2004) (same); cf.
Winston v. Lee, 470 U.S. 753, 760 (1985) (ʺ[T]he [Fourth]
Amendmentʹs ʹproper function is to constrain . . . against
The plan expressly provided that the officers would seize
17
occupants of the Terebesi home, and it largely ʺdetermine[d]
the degree of force initially to be applied in effecting the
seizure itself,ʺ Holland, 268 F.3d at 1190. It called for six
officers to charge into Terebesiʹs home, amid or just after a
series of stun grenade detonations, with weapons drawn,
and for one officer to ʺpinʺ any occupants encountered to the
ground with his ballistic shield. J.A. at 353. When the raid
was executed, Terebesi was pinned just as the plan described.
In other words, the plaintiff alleges that by devising an
unreasonable operation, the planners ordered, authorized, or
assisted others in subjecting him to excessive force—
allegations that fall squarely within clearly established
Fourth Amendment prohibitions.
30
intrusions which are not justified in the circumstances,
or which are made in an improper manner.ʹʺ (quoting
Schmerber v. California, 384 U.S. 757, 768 (1966)).
Because the raid plan concerned the method used to
execute a search warrant, it was, as a matter of clearly
established constitutional law, subject to Fourth
Amendment protections, irrespective of whether a
seizure was contemplated.18
The foregoing analysis provides a sufficient basis
on which to affirm the district courtʹs denial of qualified
immunity at the summary judgment stage. But we
cannot determine as a matter of law at this stage
whether the plan was reasonable or whether, in light of
all the facts, the constitutional principles just elaborated
apply with obvious clarity to the plannersʹ actions. The
answers to these questions depend on the resolution of
several questions of material fact, including whether the
plan provided an appropriate period of time for one of
the occupants to answer the door before the forced
entry, whether the defendants who decided to employ
these tactics understood that only a small quantity of
drugs was sought, and what the defendants understood
or should have understood to be the risks posed in the
service of this warrant. The district court determined
that genuine disputes exist on these points. At this
stage of this litigation, we are bound by the courtʹs
conclusions. Bolmer, 594 F.3d at 140–41. The
defendantsʹ appeals are therefore dismissed to the extent
that they allege that the plan was objectively reasonable
Of course, as the district court implicitly recognized,
18
Terebesiʹs planning claim must be limited to those aspects of
the raid actually reflected in the operational plan, such as the
ʺdynamic entryʺ and the use of the shield to ʺpinʺ him. See
Guizan, 2012 WL 3775876, at *12–*13, 2012 U.S. Dist. LEXIS
123727, at *34–*37. Terebesi does not argue, for example,
that the raid plan contemplated fatally shooting Guizan.
31
in light of the facts and circumstances known to each
individual defendant at the time.
C. Use of Stun Grenades
The district court also denied summary judgment
on the plaintiffsʹ claims with respect to the use of stun
grenades in the raid. The defendants argue that the
application of the Fourth Amendment to the use of such
explosive devices is not clearly established, and that
their use in this case was objectively reasonable. These
arguments relate to defendants Brennan, Phillipson, and
Torresso,19 who deployed the devices at the rear of the
house, and to defendant Lee, who tossed one through
the front doorway. As explained in the foregoing
section, they also relate to the liability of the planning
defendants.
Stun grenades ʺdetonate with a blinding flash of
light and a deafening explosion. Their function is to
temporarily stun people in a targeted building until
police or military personnel can get inside.ʺ Radley
Balko, Flashbangs under Fire, Reason, Feb. 17, 2010,
available at http://reason.com/archives/2010/02/17/
flashbangs‐under‐fire (last visited June 23, 2014); see also
Steve Ijames, I Learned About Policing from That: Flash
Bang Boom, LawOfficer, Nov./Dec. 2006, available at
http://www.lawofficer.com/article/magazine‐feature/fla
sh‐bang‐boom (last visited July 1, 2014). A stun
grenade detonation is, indeed its purpose is to be,
extremely loud. The explosion produces high
19 Phillipson did not throw a stun grenade himself, but broke
a window at the rear of the house and separated the curtains
in order to allow the other officers to toss in their grenades.
To the extent that the deployment of the stun grenades could
constitute a constitutional violation, Phillipson may be held
liable as a direct participant for assisting in an unlawful act.
See Provost, 262 F.3d at 155.
32
temperatures and has been known to cause fires, burns,
and other injuries. See United States v. Ankeny, 502 F.3d
829, 837 (9th Cir. 2007), cert. denied, 553 U.S. 1034 (2008);
United States v. Folks, 236 F.3d 384, 387–88 (7th Cir.), cert.
denied, 534 U.S. 830 (2001); see also Alexis Stevens, Toddler
Critically Injured by ʹFlash Bangʹ During Police Search, Atl.
J. Const., May 30, 2014, http://www.ajc.com/news/news/
breaking‐news/toddler‐critically‐injured‐by‐
flash‐bang‐during‐po/nf9XM/ (last visited June 23,
2014); William K. Rashbaum, Woman Dies after Police
Mistakenly Raid Her Apartment, N.Y. Times, May 17, 2003,
at B3 (reporting the death of a woman who suffered a
heart attack after police threw a stun grenade into her
apartment).
As a threshold matter, we conclude that the
Fourth Amendment principles governing police use of
force apply with ʺobvious clarity,ʺ United States v. Lanier,
520 U.S. 259, 271 (1997), to the unreasonable deployment
of an explosive device in the home. Cf. United States v.
Jones, 214 F.3d 836, 837 (7th Cir. 2000) (ʺ[P]olice cannot
automatically throw bombs into drug dealersʹ houses,
even if the bomb goes by the euphemism ʹflash‐bang
device.ʹʺ).
ʺAn officer is not entitled to qualified immunity
on the grounds that the law is not clearly established
every time a novel method is used to inflict injury.ʺ20
It has become commonplace for defendants in excessive
20
force cases to support their claims to qualified immunity by
pointing to the absence of prior case law concerning the
precise weapon, method, or technology employed by the
police. See, e.g., Nelson v. City of Davis, 685 F.3d 867, 884 (9th
Cir. 2012) (considering the use of ʺpepperball projectilesʺ).
As the Supreme Court has made clear, however, it is not
necessary to find a ʺcase directly on pointʺ in order to show
that the law governing a plaintiffʹs claim is clearly
established. al‐Kidd, 131 S. Ct. at 2083. Some measure of
33
Mendoza v. Block, 27 F.3d 1357, 1362 (9th Cir. 1994); see
also Hope, 536 U.S. at 741 (ʺ[O]fficials can still be on
notice that their conduct violates established law even in
novel factual circumstances.ʺ). The prohibition on
unreasonable force has been applied to, inter alia, the use
of firearms, tear gas, pepper spray, ʺhog‐tying,ʺ tight
handcuffs, police dogs, batons, and Tasers. See generally
1 Ivan E. Bodensteiner & Rosalie Berger Levinson, State
and Local Government Civil Rights Liability § 1:11 n.66
(2013) (collecting cases). In light of these varied
applications, we conclude that no reasonable officer
would think that his or her use of a stun grenade in the
course of executing a search warrant was beyond the
purview of the Fourth Amendment. See Rettele, 550
U.S. at 614 (excessive force may render a search
unreasonable). We therefore agree with the District of
Connecticutʹs view that the principles governing police
use of force set out in Graham v. Connor, 490 U.S. 386,
must be applied ʺto claims challenging the use of the
distraction device when executing a search warrant.ʺ
abstraction and common sense is required with respect to
police methods and weapons in light of rapid innovation in
hardware and tactics. See generally Douglas B. McKechnie,
Donʹt Daze, Phase, or Lase Me Bro!: Fourth Amendment Excessive
Force Claims, Future Nonlethal Weapons, and Why Requiring an
Injury Cannot Withstand a Constitutional or Practical Challenge,
60 Kan. L. Rev. 139, 179–87 (2011) (describing innovations in
blinding lasers, ʺdirected energyʺ weapons, Tasers, and
sound guns); James Byrne & Gary Marx, Technological
Innovations in Crime Prevention and Policing, J. Police Studs.,
No. 2011–3, at 17, 25 (noting widespread adoption of
innovative non‐lethal weapons, including ʺchemical irritants,
electric shock immobilizing technology, rubber, plastic,
wooden bullet guns, beanbag shotguns, [and] strobe and
acoustical weaponryʺ).
34
Taylor v. City of Middletown, 436 F. Supp. 2d 377, 386 (D.
Conn. 2006).
The question, then, is whether the use of stun
grenades was reasonable under the particular
circumstances alleged in this case. See Estate of Escobedo
v. Bender, 600 F.3d 770, 784–86 (7th Cir.) (finding law on
stun grenades clearly established before 2005 incident),
cert. denied, 131 S. Ct. 463 (2010); Bing v. City of Whitehall,
456 F.3d 555, 569–71 (6th Cir. 2006) (analyzing use of
stun grenades under Graham, but finding that the
officers had qualified immunity in light of the unusual
circumstances surrounding the incident); Boyd, 374 F.3d
at 778–84 (applying Fourth Amendment reasonableness
test to find use of stun grenades unreasonable, but
finding qualified immunity in light of, inter alia, the
dangerousness of the suspect involved); United States v.
Myers, 106 F.3d 936, 940 (10th Cir.) (finding that a
ʺmilitary‐style assault,ʺ involving stun grenades,
ʺc[a]me dangerously close to a Fourth Amendment
violation,ʺ but was not objectively unreasonable in light
of the suspectʹs sometimes violent criminal history), cert.
denied, 520 U.S. 1270 (1997).
The factors that other courts have considered in
assessing whether a particular use of stun grenades was
reasonable are no different from those that apply to
other forms of force, lethal or non‐lethal. In this case,
we think it important to determine whether the officers
first confirmed that they were tossing the stun grenade
into an empty room or open space. See United States v.
Morris, 349 F.3d 1009, 1012 (7th Cir. 2003) (warning that
the use of stun grenades in ʺclose proximity to personsʺ
may not be reasonable); Boyd, 374 F.3d at 779 (ʺ[I]t
cannot be a reasonable use of force under the Fourth
Amendment to throw [a stun grenade] ʹblindʹ into a
room occupied by innocent bystanders absent a strong
governmental interest, careful consideration of
35
alternatives and appropriate measures to reduce the risk
of injury.ʺ); Taylor, 436 F. Supp. at 386–87 (ʺThe court
cannot conceive of a set of circumstances that would
permit an officer . . . to throw a flash‐bang device
directly at a person.ʺ).
It also is more likely that using a stun grenade will
be considered reasonable if the subject of the search or
arrest is known to pose a high risk of violent
confrontation.21 See, e.g., United States v. Boulanger, 444
F.3d 76, 85 (1st Cir. 2006), cert. denied, 549 U.S. 906
(suspect had a history of violent crimes); Boyd, 374 F.3d
at 783 (constitutional violation not clearly established
where officers had reason to believe suspect was armed
and layout of dwelling made entry particularly
dangerous); Molina ex rel. Molina v. Cooper, 325 F.3d 963,
973 (7th Cir. 2003) (suspect had record of aggravated
assault and access to weapons); cf. Graham, 490 U.S. at
396 (considering, among other factors, ʺwhether the
suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flightʺ).
By contrast, we do not think a reasonable officer
would think that it was constitutional to use these
devices in routine searches. Indeed, to the best of our
knowledge, every appellate court to address the issue
has found questionable the use of stun grenades in
routine searches and seizures that do not pose high
levels of risk to the officers or third parties. See, e.g.,
This is not to say that using a stun grenade in such
21
circumstances is always a sound strategy; a stun grenade
may have little effect on a dangerous subject. See Bob
Parker, The High Cost of a Dynamic Entry, Police Magazine,
Sept. 30, 2011, http://www.policemag.com/blog/swat/story/
2011/09/how‐a‐dynamic‐entry‐went‐sideways.aspx (last
visited July 1, 2014).
36
Meyers, 106 F.3d at 940 (ʺCertainly, we could not
countenance the use of [stun grenades] as a routine
matter.ʺ); Boyd, 374 F.3d at 782 (quoting Meyers);
Escobedo, 600 F.3d at 785–86 (stressing that, on the facts
presented at summary judgment, the plaintiff ʺwas not
considered to be a violent, dangerous individual, he was
not the subject of an arrest and he did not pose an
immediate threat to the police or othersʺ); Molina, 325
F.3d at 973 (observing that the use of stun grenades is
not appropriate in ʺmost casesʺ). These cases, although
not binding on us, confirm the obvious: People do not
automatically lose their right to be free from explosive
devices being thrown into their houses simply because
there is a valid and outstanding search warrant with
respect to the property. The use of a stun grenade must
be justified by the particular risk posed in the execution
of the warrant.
The facts alleged by Terebesi plainly differ from
the kinds of high‐risk scenarios, like those cited above,
where courts have found the use of stun grenades to be
objectively reasonable or within the zone protected by
qualified immunity. See, e.g., Bing, 456 F.3d at 559
(suspect was reportedly intoxicated and had fired shots
at neighborhood youths); United States v. Baker, 16 F.3d
854, 855–56 (8th Cir. 1994) (suspected drug dealer was
engaged in gang activity, owned two Doberman
Pinschers, and had recently barricaded his door in a
manner that made entry difficult).
On the facts presented at the summary judgment
stage of this case, construed in the light most favorable
to Terebesi, all of the stun grenade defendants knew or
should have understood that the search warrant was for
a personal‐use quantity of drugs and that there was no
reason to believe that Terebesi posed a risk of violence
or resistance. It is true that, at the SWERT briefing, all
of the officers were told that Terebesi habitually used
37
crack cocaine, that he had recently been the victim of a
shotgun attack, that he owned a handgun that was
ʺunaccounted for,ʺ and that he held what might have
been an unusually strong affection for his pet bird. But
none of these facts suggested that Terebesi was ready to
engage in violence, that he had any record of or
propensity towards violence, that he had immediate
access to weapons, or indeed that he was likely to offer
any resistance at all. We therefore conclude that the
record, as presented at summary judgment, presents
material questions as to whether each defendantʹs
decision to deploy stun grenades was reasonable under
clearly established law, in light of his personal
knowledge of the facts and circumstances surrounding
the search.22 We therefore conclude that the district
court properly denied the defendants qualified
immunity at this stage of the proceedings.
D. Actions of Officers Sweeney and Weir
The district court also determined that defendants
Sweeney and Weir were not entitled to qualified
immunity for their role in executing the raid.23
22 Apart from the question of whether it was reasonable for
police to deploy stun grenades in executing the warrant to
search Terebesiʹs home at all, there are material disputes with
respect to the manner in which the grenades were actually
deployed into the residence. To the extent that the
defendants argue that they exercised all appropriate caution
in the deployment of the grenades, these assertions are based
on disputed facts and must therefore and to that extent be
dismissed for lack of appellate jurisdiction. We note only
that, insofar as the use of stun grenades itself was excessive
in light of clearly established law, this will be sufficient to
establish liability regardless of whether the officers exercised
appropriate care in handling their weapons.
The district court based its decision to deny qualified
23
immunity on this issue entirely on the facts surrounding the
38
Sweeney entered the home first and fired the shots that
killed Gonzalo Guizan. He also pinned Terebesi to the
floor with his shield and, according to Terebesiʹs
account, struck him in the head with a pistol. Weir
entered the home immediately after Sweeney and fired
one shot into the floor. Terebesi alleges that he suffered
physical injuries from his encounter with Sweeney, and
that, by fatally shooting Guizan in Terebesiʹs presence,
Sweeney caused emotional and psychological injury to
Terebesi, aggravating a pre‐existing condition of
post‐traumatic stress disorder. Terebesi also alleges
that Weirʹs actions contributed to these injuries.
As we have explained, the Fourth Amendment
protection against unreasonable uses of force extends to
the manner in which a search is conducted. See Rettele,
550 U.S. at 614. Depending on the circumstances, a
search may be unreasonable under the Fourth
Amendment even if officers do no more than threaten
the occupants with firearms. See Holland, 268 F.3d at
1192 (ʺThe display of weapons, and the pointing of
firearms directly at persons inescapably involves the
immediate threat of deadly force. Such a show of force
should be predicated on at least a perceived risk of
injury or danger to the officers or others, based upon
what the officers know at that time.ʺ); 2 Wayne R.
LaFave, Search & Seizure § 4.8(h) (5th ed. 2013) (ʺEven a
show of force in executing a search warrant, without
actual harm to property or person, may be questioned
officersʹ encounters with Guizan. As noted above, the estate
of Gonzalo Guizan is no longer a party to this litigation.
Nevertheless, ʺwe may affirm an appealed decision on any
ground which finds support in the record, regardless of the
ground upon which the trial court relied.ʺ Sudler v. City of
N.Y., 689 F.3d 159, 178 (2d Cir. 2012) (internal quotation
marks omitted), cert. denied, 133 S. Ct. 2777 (2013).
39
on Fourth Amendment grounds.ʺ). These principles
apply a fortiori to the discharge of weapons during a
search, such that any reasonable officer must
understand that his decision to fire a gun during the
execution of a search warrant is subject to Fourth
Amendment scrutiny, regardless of whether he hits
anyone.
Whether in this case the officersʹ actions were
reasonable in light of clearly established law is not a
question we may answer conclusively at this stage of the
proceedings. As the district court recognized, the
reasonableness of Sweeneyʹs decision to fire his weapon
depends in large part on whether Guizan did in fact
attempt to wrest the weapon away from him, whether
Sweeney was blinded by debris from the stun grenade
explosion, and whether Sweeney reasonably believed he
was taking fire once inside the house. The district court
noted, moreover, that the credibility of Sweeneyʹs
recollection of these events was subject to genuine
dispute.24 For the same reasons, we are unable to
conclude at this juncture that Sweeney is entitled to
qualified immunity for his decision to ʺpinʺ Terebesi
with his shield. Because Sweeneyʹs claims to qualified
immunity rely on these disputed facts, we have no
jurisdiction to entertain them at this time.
Weir, for his part, testified that he fired his
weapon because he thought that Guizan was firing at
Sweeney. The credibility of his recollection and the
24 Sweeney has, in turn, raised questions about Terebesiʹs
credibility—a matter that is also for the jury to decide and
thus beyond our jurisdiction in this interlocutory appeal.
See, e.g., McClellan v. Smith, 439 F.3d 137, 148 (2d Cir. 2006);
Cowan, 352 F.3d at 761 (ʺ[W]e will disregard any disputed
facts or facts that contradict [the plaintiffʹs] version of
events.ʺ).
40
sufficiency of the asserted basis for his mistaken
impression that Guizan was firing at the officers
are—like the factual arguments made by
Sweeney—matters to be determined by the factfinder.
We therefore affirm the decision of the district
court insofar as it determined that defendants Sweeney
and Weir were not entitled to qualified immunity at the
summary judgment stage in connection with their roles
in the raid of Terebesiʹs home.
IV. Knock‐and‐Announce Violations
It is clearly established that, absent exigent
circumstances, the Fourth Amendment requires officers
executing a search warrant to knock at the entrance of
the premises to be searched and to announce their
presence. Hudson v. Michigan, 547 U.S. 586, 589 (2006)
(noting that the rule has ʺancientʺ roots in the common
law, was codified as a federal statute in 1917, and has
been treated by the Supreme Court as a ʺcommand of
the Fourth Amendmentʺ since 1995). Absent exigency,
the police must give an occupant a reasonable time to
reach the door, ʺa time that will vary with the size of the
establishment, perhaps five seconds to open a motel
room door, or several minutes to move through a
townhouse.ʺ United States v. Banks, 540 U.S. 31, 39–40
(2003).
The district court determined that the plaintiffsʹ
knock‐and‐announce claims could proceed against
Brennan, Edwards, Lee, Phillipson, Sweeney, Torresso,
and Weir.25 The defendants argue that exigent
Brennan, Phillipson, and Torresso deployed the stun
25
grenades at the rear of the house. Lee was responsible for
ʺknocking and announcingʺ the police presence, while
Edwards breached the door. J.A. 342–43. Sweeney and
Weir were the first two officers inside the house; both fired
shots.
41
circumstances justified any violation of the
knock‐and‐announce requirement.26 Defendants
Brennan, Phillipson, and Torresso argue separately that
their part in the plan, which was limited to breaking a
rear window and throwing two stun grenades into an
empty room, was not subject to the knock‐and‐announce
requirement, and that it was objectively reasonable for
them to believe that the plaintiff would receive adequate
announcement.
A. Front‐Entry Team
The ordinary knock‐and‐announce requirement
may not apply where officers reasonably suspect that
announcing their presence, ʺunder the particular
circumstances, would be dangerous or futile, or that it
would inhibit the effective investigation of the crime by,
for example, allowing the destruction of evidence.ʺ
Richards v. Wisconsin, 520 U.S. 385, 394 (1997). We
consider the following factors as ʺguideposts for
determining the existence of exigent circumstancesʺ:
(1) the gravity or violent nature of the
offense with which the suspect is to be
charged; (2) whether the suspect is
reasonably believed to be armed; (3) a clear
showing of probable cause to believe that
the suspect committed the crime; (4) strong
reason to believe that the suspect is in the
26 The defendants, relying on the testimony of Lee and
Edwards, also assert that the officers in the front‐entry team
complied with the knock‐and‐announce requirement. The
plaintiffs disputed this testimony, pointing to video and
audio evidence suggesting that the officers waited only
approximately five seconds after announcing their presence
to breach the door. Because this argument depends on
disputed issues of material fact, we lack jurisdiction to assess
it.
42
premises being entered; (5) a likelihood that
the suspect will escape if not swiftly
apprehended; and (6) the peaceful
circumstances of the entry.
United States v. Moreno, 701 F.3d 64, 73 (2d Cir. 2012)
(quoting United States v. MacDonald, 916 F.2d 766, 769–70
(2d Cir. 1990) (en banc) (ellipsis omitted)), cert. denied, 133
S. Ct. 2797 (2013). In addition, we take into account
whether ʺquick action is necessary to prevent the
destruction of evidence.ʺ United States v. Brown, 52 F.3d
415, 421 (2d Cir. 1995), cert. denied, 516 U.S. 1068 (1996).
No one factor is dispositive, and the list here is ʺmerely
illustrative, not exhaustive.ʺ Moreno, 701 F.3d at 73
(quoting United States v. Gordils, 982 F.2d 64, 69 (2d Cir.
1992)).
The district court correctly concluded that
qualified immunity was not warranted at the summary
judgment stage. The plaintiffs presented evidence
indicating that all of the defendants understood that the
warrant was for a small amount of drugs meant only for
personal use. The basis for the officersʹ entry, in other
words, was related to an offense that was neither grave
nor violent. See Moreno, 701 F.3d at 73. As the
Supreme Court stated in a related context, the
ʺapplication of the exigent‐circumstances exception in
the context of a home entry should rarely be sanctioned
when there is probable cause to believe that only a
minor offense . . . has been committed.ʺ Welsh v.
Wisconsin, 466 U.S. 740, 753 (1984) (rejecting exigency as
a justification for warrantless nighttime entry into home
to arrest drunk‐driving suspect).
On the version of the facts most favorable to
Terebesi, then, there was not enough evidence for a
reasonable officer to conclude that the occupants of the
house were so dangerous as to create exigent
43
circumstances despite the nature of the offense at issue.
Apart from Terebesiʹs perhaps unusually intense ardor
for his pet bird, the defendants point to no evidence in
the record suggesting that Terebesi would actually use
force against the police.27 Maybe most tellingly, the
officers did not seek or even discuss acquiring a warrant
that would expressly have permitted a ʺno‐knockʺ entry,
while several officers testified to understanding that the
knock‐and‐announce rule applied to this operation.
And there is no allegation that any exigency arose after
the operation began. See, e.g., Banks, 540 U.S. at 37–38
(exigency may arise after the officers knock the first
time). Taken together, these facts suggest that the
officers, under the circumstances prevailing at the time
of entry, understood there to be no exigent
circumstances that would permit dispensing with the
knock‐and‐announce requirement.
For the foregoing reasons, we cannot decide at
this stage of the proceedings whether some or all of the
front‐entry defendants will ultimately be entitled to
immunity for the alleged knock‐and‐announce
violations. The reasonableness of their belief that
Terebesi was dangerous turns on precisely what Barton
said at the SWERT briefing about Terebesiʹs gun
ownership and his propensity for violence, what
reasonable conclusions could be drawn from this
information, and whether any of the officers were told
that Terebesi would likely shoot at intruders. We
therefore agree with the district court that the issue of
exigency is not appropriately decided on summary
judgment.
Although some officers testified to being told that Terebesi
27
would shoot at them, Terebesi disputes their credibility.
44
B. The ʺRake and Breakʺ Team
The defendants comprising the team at the rear of
the house—Brennan, Phillipson, and Torresso—argue
that the knock‐and‐announce rule did not clearly apply
to their conduct, which was limited to breaking a
window and deploying two stun grenades. Although
Supreme Court case law supports the proposition that
breaking a window for the purposes of deploying a
weapon triggers the knock‐and‐announce rule,28 we
need not address that issue here. On what is contained
in the record on summary judgment, we agree with the
district court that the actions of Brennan, Phillipson, and
Torresso may have frustrated any attempt by the
entering officers to comply with the knock‐and‐
announce rule at the front door.
ʺThe knock‐and‐announce rule gives individuals
ʹthe opportunity to comply with the law and to avoid the
destruction of property occasioned by a forcible entry,ʹʺ
and supplies them with ʺthe ʹopportunity to prepare
themselves forʹ the entry of the police.ʺ Hudson, 547
U.S. at 594 (quoting Richards, 520 U.S. at 393 n.5). For
this reason, the ʺknock and announcement must be loud
enough to be heard, and it must be followed by a pause
28 United States v. Ramirez, 523 U.S. 65, 69–71 (1998)
(concluding that breaking a garage window for the purposes
of pointing a gun inside constitutes an ʺentryʺ, but finding
that exigent circumstances justified dispensing with the
knock‐and‐announce requirement); see also Rush v. City of
Mansfield, 771 F. Supp. 2d 827, 870 (N.D. Ohio 2011) (stating
that the detonation of a stun grenade is itself an ʺunexpected
and threatening intrusionʺ subject to the
ʺknock‐and‐announceʺ requirement); cf. 18 U.S.C. § 3109
(setting out circumstances under which a federal officer ʺmay
break open any outer or inner door or window of a house, or
any part of a house, or anything therein, to execute a search
warrantʺ).
45
long enough for someone to answer or come to the
door.ʺ United States v. Leichtnam, 948 F.2d 370, 374 (7th
Cir. 1991); see also Miller v. United States, 357 U.S. 301, 311
(1958) (suggesting that officers announced their
presence too quietly to satisfy the purposes of the rule).
As the district court recognized, a series of loud and
confusing announcements from all sides of the house
may frustrate the dignitary and protective purposes of
the rule. Cf. Hudson, 547 U.S. at 594 (setting out the
purposes for the rule).
The district court correctly found that, on the facts
most favorable to the plaintiffs, Brennan, Torresso, and
Phillipson might unreasonably have frustrated the
purpose of knocking and announcing. After Phillipson
broke the window, Brennan and Torresso deployed two
stun grenades shortly before the officers at the front
door announced their presence. Even after they
detonated, the grenades caused glass to continue to fall
and break while the officers at the front door were
announcing their presence. At the same time, Brennan
began shouting, from the rear of the house, ʺPolice.
Police with a warrant. Hands up.ʺ At this stage of the
case, the district court properly concluded that the
defendantsʹ actions could have disoriented and
confused the occupants of the house, depriving them of
a meaningful opportunity to answer the door.
V. Failure to Intervene
ʺIt is widely recognized that all law enforcement
officials have an affirmative duty to intervene to protect
the constitutional rights of citizens from infringement by
other law enforcement officers in their presence.ʺ
Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). An
officer who fails to intercede in the use of excessive force
or another constitutional violation is liable for the
preventable harm caused by the actions of other officers.
46
Id. Whether the officer had a ʺrealistic opportunityʺ to
intervene is normally a question for the jury, unless,
ʺconsidering all the evidence, a reasonable jury could
not possibly conclude otherwise.ʺ Id.
We agree with the district court that, insofar as the
raid plan included the use of substantial and violent
force, the plaintiff alleged facts suggesting that every
defendant had the opportunity to intervene. Whether
some of the defendants were in fact unable to intercede
in particular uses of force, either because they were not
involved in the planning process, or because of the
manner, place, and timing of their deployment in the
raid itself, is properly a question for a jury. Id.
VI. Immunity from State Negligence Claims
Connecticut law entitles municipal officers to a
form of ʺqualified immunityʺ for the negligent
performance of discretionary acts. Evon v. Andrews, 211
Conn. 501, 505, 559 A.2d 1131, 1133–34 (1989). The law
provides ʺthree exceptionsʺ to this general rule: (i) where
it was apparent that the act would subject a person to
imminent harm; (ii) where a statute provides a cause of
action against a municipal officer; and (iii) where the act
involves ʺmalice, wantonness or intent to injure.ʺ Id.
The district court declined to grant summary judgment
on the plaintiffsʹ negligence claims on state‐law
immunity grounds, finding that there were genuine
disputes of material fact as to the first and third prongs
of the inquiry. This finding is not subject to
interlocutory appeal. See In re State Police Litig., 88 F.3d
111, 127 (2d Cir. 1996).
CONCLUSION
We have considered the partiesʹ remaining
arguments and find them to be without merit. In light
of the foregoing, we REVERSE the judgment of the
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district court insofar it determined that Chief Solomon
was not entitled to qualified immunity from liability for
the decision—standing alone—to activate the SWERT
tactical team. We AFFIRM the judgment insofar as it
held that Terebesiʹs claims implicated clearly established
constitutional law with respect to the planning and
approval of the raid, the use of stun grenades, the
actions of Officers Michael Sweeney and Brian Weir, the
alleged knock‐and‐announce violations, and the duty of
police to intervene in constitutional violations by fellow
officers. In all other respects, the defendantsʹ
arguments on appeal rely on disputed issues of fact and
the appeal is therefore DISMISSED for lack of
jurisdiction. The case is REMANDED for further
proceedings.
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