Whitewater v. Goss

LUCERO, J., dissenting.

My respected colleagues use a seemingly straightforward order and judgment in resolving this case, yet, because the Majority’s judgment fails to adhere to the established precedent of this circuit, I must respectfully dissent.

As daylight broke on April 24, 2002, thirteen members of the Cherokee County Sheriffs Department SWAT team — guns drawn and dressed in full camouflage— stormed the residence of sixty-one-year old Robert Whitewater. During the raid, all occupants of the home, including a twelve-year old child, were secured at gunpoint and led outside. Although most of the Majority’s reasoning is sound, I cannot agree with its conclusion that Sheriff Goss’s decision to deploy a SWAT team to conduct a search of the Whitewater residence was reasonable, and therefore dissent as to that part of the opinion.

My colleagues recognize that in Holland v. Harrington, 268 F.3d 1179 (10th Cir.2001), we held that the Fourth Amendment applies to the decision to deploy a SWAT team. However, if precedential, the Majority would reduce Holland’s holding to the proposition that “unless the decisionmakers knew ‘that the SWAT team would use excessive force, intending to cause harm to any person, or ... instructed the SWAT team to use excessive force while conducting the ... raid” such a decision is reasonable under the Fourth Amendment. Maj. Op. at 797-98 (citing Holland v. Harrington, 268 F.3d at 1189).

*800Such a reading of Holland impermissibly clashes with the clear text of the decision. In Holland, we stated that use of a SWAT team to execute a search or seizure “necessarily involves ... an overwhelming show of force — force far greater than that normally applied in police encounters with citizens.” Id. at 1190. Accordingly, the Holland panel had no difficulty in concluding that the initial decision to deploy a SWAT team must be reasonable under the Fourth Amendment. Id. It adopted the balancing test established by the Supreme Court in Tennessee v. Gamer, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), to judge the reasonableness of the decision, “balancing the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Id. (citing Gamer, 471 U.S. at 8, 105 S.Ct. 1694). Under that test, the Holland court concluded that the decision to deploy the SWAT team was reasonable because: (1) the officers knew that the individual that owned the property had a violent criminal history; (2) firearms were suspected to be located at the property; (3) the officers knew that other residents of the property had a history of violence; (4) although unaware of exactly how many residents were located at the property, the officers suspected at least 7-8 adults resided there; and (5) the use of a SWAT team was based on the officers’ goal to effectuate a quick and safe execution of the search warrant and prevent the destruction of evidence. Id. at 1191.

Having analyzed whether the initial decision to deploy a SWAT team was reasonable, the Holland panel turned to the plaintiffs’ alternative theory that the-decision to deploy the SWAT team was unreasonable because SWAT team members actually used excessive force while executing the search. Id. Our previous decision in Holland specifically noted that this second theory presented “another matter.” Id. Our circuit then held that defendants as supervisors can not be held liable for the actions of their deputies based on their decision to deploy the SWAT team because they did not know “that the SWAT team would use excessive force, intending to cause harm to any person, or ... instructed the SWAT team to use excessive force while conducting the ... raid.” Id. at 1191.

Under Holland’s balancing test, Sheriff Goss’s decision to deploy the SWAT team to execute the search of Whitewater’s residence was plainly unreasonable. There is no evidence that Whitewater — whose only prior brushes with the law consisted of public drunkenness convictions — presented any risk of violence. Nor did Sheriff Goss have any reason to believe that the property itself or its other occupants posed any threat to officer safety. The only identified basis for the use of the SWAT team was the potential presence of marijuana at the Whitewater residence.

Sheriff Goss, who made the final decision, testified in her deposition that she could not think of any situation involving drugs of any kind where she would not use the SWAT team to execute the warrant.1 Yet, the likelihood that narcotics are pres*801ent at a location does not by itself create a significant risk of violence to justify the decision to deploy a SWAT team under Holland. See also Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (rejecting a categorical exception to the knock-and-announee requirement for searches involving narcotics because “not every drug investigation” will “pose special risks to officer safety and the preservation of evidence”); United States v. Basham, 268 F.3d 1199, 1205-1206 (10th Cir.2001) (rejecting the argument that “because a person is involved in the drug trade, that person is likely to be dangerous or possess firearms”); United States v. Myers, 106 F.3d 936, 940 (10th Cir.1997) (rejecting the routine use of flash-bang devices when executing search warrants, but finding a particular use of a flash-bang device was justified because the suspect had a lengthy history of criminal activity, including a conviction for fire-bombing).

Through the present order and judgment, the Majority’s purported limitation of Holland’s proscription, that disallows the blanket use of SWAT teams to execute search and arrest warrants would scuttle Holland. Allowance of the use of SWAT teams in virtually every case involving any quantity of drugs whatsoever is unacceptable under the clearly established precedent of our court and of the Supreme Court. See In re Smith, 10 F.3d 723, 724 (10th Cir.1993) (“We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.”). I would reverse the district court’s decision to grant summary judgment in favor of the County.

. Because this case was brought against the Sheriff in her official capacity, the plaintiffs must also prove that the constitutional violation was caused by government policy or custom. Unquestionably, the decision to deploy the SWAT team to execute the search of the Whitewater residence was the result of a policy of the Cherokee County Sheriff’s Department. Bryan Swim, the SWAT team leader, testified during his deposition that "it was determined that the SWAT team would be used just pretty much on every search warrant that was executed.”