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Door-busting raids leave trail of blood

CORNELIA, Ga. — This town on the edge of the Appalachians has fewer than 5,000 residents, but the SWAT team was outfitted for war.

At 2:15 a.m. on a moonless night in May 2014, 10 officers rolled up a driveway in an armored Humvee, three of them poised to leap off the running boards. They carried Colt submachine guns, light-mounted AR-15 rifles and Glock .40-caliber sidearms. Many wore green body armor and Kevlar helmets. They had a door-breaching shotgun, a battering ram, sledgehammers, Halligan bars for smashing windows, a ballistic shield and a potent flash-bang grenade.

The target was a single-story ranch-style house. Not even four hours earlier, three informants had bought $50 worth of methamphetamine in the front yard. That was enough to persuade the county's chief magistrate to approve a no-knock search warrant authorizing the SWAT operators to storm the house without warning.

The point man on the entry team found the side door locked, and nodded to Deputy Jason Stribling, who took two swings with the metal battering ram. As the door splintered near the deadbolt, he yelled, "Sheriff's department, search warrant!" Another deputy, Charles Long, had already pulled the pin on the flash-bang. He placed his left hand on Stribling's back for stability, peered quickly into the dark and tossed the armed explosive about 3 feet inside the door.

It landed in a portable playpen.

As policing has militarized to fight a faltering war on drugs, few tactics have proved as dangerous as the use of forcible-entry raids to serve narcotics search warrants, which regularly introduce violence into missions that might be accomplished through patient stakeouts or simple knocks at the door.

Thousands of times a year, these "dynamic entry" raids exploit the element of surprise to effect seizures and arrests of neighborhood drug dealers. But they have also led time and again to avoidable deaths, gruesome injuries, demolished property, enduring trauma, blackened reputations and multimillion-dollar legal settlements at taxpayer expense, an investigation by the New York Times found.

For the most part, governments at all levels have chosen not to quantify the toll by requiring reporting on SWAT operations. But the newspaper's investigation, which relied on dozens of open-record requests and thousands of pages from police and court files, found that at least 81 civilians and 13 law enforcement officers died in such raids from 2010-2016. Scores of others were maimed or wounded.

The casualties have occurred in the execution of no-knock warrants, which give police prior judicial authority to force entry without notice, as well as warrants that require police to knock and announce themselves before breaking down doors. Often, there is little difference.

Innocents have died in attacks on wrong addresses, including a 7-year-old girl in Detroit, and collaterally as police pursued other residents, among them a 68-year-old grandfather in Framingham, Mass.

Search warrant raids account for a small share of the nearly 1,000 fatalities each year in officer-involved shootings. But what distinguishes them from other risky interactions between police and citizens is that they are initiated by law enforcement.

Police officers and judges must find probable cause of criminal activity to justify a search warrant. Absent resources for endless stakeouts, police tacticians argue that dynamic entry provides the safest means to clear out heavily fortified drug houses and to catch suspects with the contraband needed for felony prosecutions.

But critics of the forced-entry raids question whether the benefits outweigh the risks. The drug crimes used to justify so many raids, they point out, are not capital offenses. And even if they were, that would not rationalize the killing or wounding of suspects without due process.

The New York Times found that from 2010-2015, an average of least 30 federal civil rights lawsuits were filed a year to protest residential search warrants executed with dynamic entries. Many of the complaints depict terrifying scenes in which children, elderly residents and people with disabilities are manhandled at gunpoint, unclothed adults are rousted from bed and houses are ransacked without recompense or apology.

"There's a real misimpression by the public that aggressive police actions are only used against hardened criminals," said Cary J. Hansel, a Baltimore lawyer who has represented plaintiffs in such lawsuits. "But there are dozens and dozens of cases where a no-knock warrant is used against somebody who's totally innocent."

At least seven of the federal lawsuits have been settled for more than $1 million in the past five years.

In most botched raids, prosecutors declined to press charges against the officers involved.

Planned in haste

Perhaps no fiasco illustrates the perils of no-knock searches as graphically as the 2014 raid in Georgia's northeast corner. On May 22, an eager young Habersham County sheriff's deputy named Nikki Autry, who was attached to a narcotics task force, turned a small-time methamphetamine user into a confidential informant. Intent on avoiding jail, the informant, James Alton Fry Jr., set about the task of baiting bigger fish.

According to trial testimony and investigative documents, the agents sent Fry out on the night of May 27 to make drug buys. He scored two Lortab pain pills on his first approach, struck out with a second source and then was connected to a meth dealer named Wanis Thonetheva. Around 10:30 p.m., Fry, his wife, Devon, and their housemate, Larry Wood — all persistent meth users — drove to the address provided by the dealer.

"It didn't look like a drug house," Devon Fry later testified. "This was a nice house. It's usually a shack or trailer." Police did not follow them to provide protection or surveil the property.

Wood conducted his business out front with Thonetheva, a 30-year-old U.S.-born son of Laotian immigrants, as the Frys waited in their red pickup. They had spotted two men at the house whom they took to be guards for the drug operation, and a third who might have been a supplier.

The agents sent the informants home, but about half an hour later Autry texted Devon Fry with an afterthought. "Did y'all see any signs of kids at wanis' house," she asked.

"Nothing except a minivan," came the response.

Thinking she was on to a big score, Autry, who was 28, did not wait for daylight or further investigation. She returned to the Sheriff's Office, where she pulled Thonetheva's criminal history and mug shot. With the approval of the sheriff, Joey Terrell, she alerted the county's Special Response Team to prepare for a raid. She and her drug unit commander, Murray J. Kogod, began drafting the application for the no-knock warrant.

The affidavit included inaccuracies and hyperbole.

Shortly after midnight, Autry and another agent awakened the county magistrate, James N. Butterworth, with a house call. He read the affidavit and placed her under oath.

She told him that Thonetheva had been arrested several times for drug possession, that there might be armed lookouts at the house and that an assault involving an AK-47 had been reported there the previous year. The judge found no reason to dispute probable cause and signed at 12:15 a.m.

When the flash-bang detonated with a concussive boom, a blinding white light filled the room. The entry team rumbled in, screaming for the occupants to get to the ground. Stribling peered into the playpen with a flashlight and found 19-month-old Bounkham Phonesavanh.

The child, known affectionately as Bou Bou, had a long laceration and burns across his chest, exposing his ribs, and another gash between his upper lip and nose.

Shifting definitions

In 2003, the Supreme Court affirmed the right of officers to break into a residence with a standard warrant after knocking and waiting only 15 to 20 seconds. Three years later, it undercut even that requirement by concluding that evidence remains admissible even when the police barge in more quickly.

That has helped blur the distinction between no-knock and knock-and-announce entries.

In the New York Times' inventory, 47 civilians and five officers died as a result of the execution of knock-and-announce searches, while 31 civilians and eight officers died in the execution no-knock warrants. The type of warrant could not be determined in three civilian fatalities.

With so little restraint exerted by the federal courts, few states have offered greater protections. A survey by the newspaper found that 13 states have enacted laws authorizing no-knock warrants. Another 13 have blessed them through rulings by appellate courts. In seven states, no-knock warrants are routinely granted in the absence of explicit authority by statute or the courts. In 16 states and the District of Columbia, no-knock warrants are not customary but police can nonetheless make unannounced entries with standard warrants.

Only in Oregon does state law prohibit no-knock entries, and only in Florida has a state Supreme Court disallowed no-knock warrants.

Officers are divided

Some SWAT veterans find it confounding that many police agencies remain so devoted to dynamic entry. The tactic is far from universally embraced.

The National Tactical Officers Association has long called for using dynamic entry sparingly. Robert Chabali, the group's chairman from 2012-2015, goes so far as to recommend that it never be used to serve narcotics warrants.

"It just makes no sense," said Chabali, a SWAT veteran who retired in 2015 as assistant chief of the Dayton Police Department in Ohio. "If we are going to risk our lives, we risk them for a hostage, for a citizen, for a fellow officer."

But officials with other law enforcement groups reject such approaches.

"If you want to take the position that narcotics laws in this country should not be enforced, then okay, yeah," said Sheriff Greg Champagne of St. Charles Parish in Louisiana, president of the National Sheriffs' Association. "That's not the position of the law enforcement people around the country that I know. If you're going to make narcotics cases you need to have evidence, and search warrants are how you get it."

'Why didn't you knock?'

As SWAT officers administered first aid to Bou Bou Phonesavanh, other agents detained his parents — Bounkham and Alecia Phonesavanh — and their three other children, ages 3 to 7.

"You know why we're here," an officer barked at Bounkham Phonesavanh.

He didn't. "Why didn't you knock on the door?" he asked.

Elsewhere in the house, the agents came upon Bounkham Phonesavanh's sister, Amanda Thonetheva, who owned the place, as well as her boyfriend, her grandson and one of her sons. They did not find her other son, 30-year-old Wanis, who no longer lived there. Nor did they find guns or drugs beyond some meth residue in a glass pipe. Later that night, deputies arrested Wanis at another address.

Bou Bou survived the explosion after being sped to a hospital in Atlanta. Now 4, he underwent his 15th surgery late last year, with more to come, his mother said.

The Phonesavanhs received $3.6 million in settlements to the federal lawsuit they filed against the traumatized members of the drug and SWAT teams.

A Habersham County grand jury issued a stinging report, but found no criminal negligence and declined to indict any of the participants. Federal prosecutors then won an indictment of Autry for violating Bou Bou's civil rights, but she was acquitted after a weeklong trial.

Door-busting raids leave trail of blood 03/18/17 [Last modified: Saturday, March 18, 2017 9:39pm]
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