Ninth Circuit to DEA: Putting a Gun to an 11-Year-Old's Head Is Not OK

Reason ^ | 6/18/12 | Mike Riggs

[BCrago66]

At 7 a.m. on January 20, 2007, DEA agents battered down the door to Thomas and Rosalie Avina’s mobile home in Seeley, California, in search of suspected drug trafficker Louis Alvarez. Thomas Avina met the agents in his living room and told them they were making a mistake. Shouting “Don’t you *ucking move,” the agents forced Thomas Avina to the floor at gunpoint, and handcuffed him and his wife, who had been lying on a couch in the living room. As the officers made their way to the back of the house, where the Avina’s 11-year-old and 14-year-old daughters were sleeping, Rosalie Avina screamed, “Don’t hurt my babies. Don’t hurt my babies.”

[MadMax, the Grinning Reaper]

Explain what a Bivens action is. I have long forgotten that term.

Intentional infliction of Emotional Distress (IIED) will be a win for the Avinas. Maybe even A&B on the children. Possibly not on the parents.

However, police negligence in terms of getting the wrong house could be a winner for the plaintiffs, charging dereliction of duty, gross negligence (because of the use of force/guns inside their house where children were living), reckless endangerment, etc.

I still cannot understand how the police, with all the technology that exists out there for them to confirm license plate tags with the names of those who live at an associated address, can still screw it up so badly.

You are supposed to double and even triple-check your information before planning a raid. Observation of the house is also supposed to be done, as well as to check phone numbers/names to that address, gas/electric bills - names, asking neighbors who lives there, and observing license plates of cars parked there.

This was a monumental fuck up and the police deserve to pay plenty, as in millions. A couple heads of the tactical unit should also roll because of their gross negligence, and the prosecutor who signed the warrant should also be reprimanded because he didn’t check the accuracy of the information given to him for a search warrant. LAWYERS are responsible for the accuracy of documents that they sign unless their is some kind of immunity clause to protect their office.

[Cyman]

And after reading the actual decision it appears the court was REALLY trying to hint that if the appeal had included the original judge signed warrant AND it was shown that these types of mistakes were “based on a false affidavit” or one that was “based on so lacking on indicia of probable cause”, it would have possibly looked favorably at the parent’s petition.

I am not a lawyer but I play one in front of my tv set every night watching Law and Order and yelling at Jack McCoy.

[MSSC6644]

The cops (D. A.) develop a friendly relationship with a judge, and whenever they want, they get permission to break into someone’s home.

Don't judges who grant warrants have ANY responsibility to make sure the information asking for the warrant is accurate?

[Don Corleone]

OK if its Elian Gonzales though?

[hadaclueonce]

only if the dike is leaking...

[paul51]

Maybe if someone put a gun to your head you wouldn’t be posting such stupid comments

[bill1952]

>Don’t judges who grant warrants have ANY responsibility to make sure the information asking for the warrant is accurate?

Short answer - No.

Judges have unqualified immunity from any and all actions that emanate from the bench.
As one teacher put it baldly:
“If you are found screwing the judges daughter he can issue an order from the bench ordering you to be castrated.”
If a doctor is found who will do such then you are a eunuch and the legal liability of the judge to criminal prosecution is Zero.

[BCrago66]

WHO said it was OK if Elian Gonzales‽

[luvbach1]

This is going to cost tax payers again.Or do the culprits have to pay?

[RedStateRocker]

Well, it’s not ‘terror’ when a Republican administration does it.

[luvbach1]

If we lived in a just country, the director of the operation, along with his/her boss, would lose his job and his pension.

Instead tax payers will have to pay the damages.

[the invisib1e hand]

I have a hunch that gay psycho with the machine gun still has nightmares.

[Clintonfatigued]

“The agents entered the 14-year-old girl’s room first, shouting “Get down on the fucking ground.” The girl, who was lying on her bed, rolled onto the floor, where the agents handcuffed her. Next they went to the 11-year-old’s room. The girl was sleeping. Agents woke her up by shouting “Get down on the fucking ground.” The girl’s eyes shot open, but she was, according to her own testimony, “frozen in fear.” So the agents dragged her onto the floor. While one agent handcuffed her, another held a gun to her head.

Moments later the two daughters were carried into the living room and placed next to their parents on the floor while DEA agents ransacked their home. After 30 minutes, the agents removed the children’s handcuffs. After two hours, the agents realized they had the wrong house—the product of a sloppy license plate transcription—and left.”

This is deplorable! The War on Drugs is becoming a war on innocent Americans.

[Bratch]

I am not a lawyer but I play one in front of my tv set every night watching Law and Order and yelling at Jack McCoy.

Ben Stone >>>> Jack McCoy

[Clintonfatigued]

Would Moral Absolutes apply to this?

[BCrago66]

I’m no expert, but that never stopped me before...

Bivens and 1983 actions (Bivens when suing the feds; 1983 when suing state actors) are based upon rights-granting provisions of the Constitution, e.g., the 1st and 4th Amendments. So lets say the police conduct an illegal search, but they do it electronically so there’s no question of assault & battery or any other common-law tort. Via a Bivens or 1983 action, you can sue the bad actor directly under the 4th Amendment. [Correction: 1983 actions against state actors may be based upon any right-granting provision in the Constitution; I believe Bivens actions against the feds are restricted to 4th Amendment claims (and if I’m wrong, someone please correct me.)]

Bivens:
http://supreme.justia.com/cases/federal/us/403/388/case.html

42 USC § 1983
http://www.law.cornell.edu/uscode/text/42/1983

What’s interesting about this case is that the plaintiff chose NOT to sue using a Bivens/4th Amendment action, but under the common-law torts of assault/battery/emotional distress, and while the plaintiff didn’t win as yet, the 9th Circuit revived the case, giving the plaintiff the right to try the case before a jury. I haven’t thought much about the strategic considerations that made the plaintiff do this, but it looks as if now (at least within the 9th Circuit) there’s another viable way to challenge no-knock raids.

[arthurus]

Actually, it is. The difference is that the Republicans, in the main, don’t think they are instituting a totalitarian regime. As for Democrats, Totalitarianism is their project.

[Clintonfatigued]

Libertarian/police state ping

[Mister Da]

I cannot help but think that anybody who would hold a gun to a child’s head must have something seriously wrong with them. In a sane society they are called monsters.

How do you sleep at night after assaulting a child, unless you are without human feeling? Do you feel good after terrorizing 2 young girls for hours? Has your manhood been vindicated?

[publius911]

Some "mistakes" are clearly crimes in themselves. If these incompetents are not punished, and that family (and their property) made whole, we are in deeper doo-doo than I thought.

And I absolutele detest drugs and drug dealers...