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.
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.
The percentage of these raids that go wrong is vanishingly small. So the fact that it seems like so many are in the news tells us that there are an enormous number of these raids going on.
Also suing the police doesn't cost them anything. The taxpayers pick up the tab. What would work better ironically, would be some Rodney King style civil rights suits that target specific cops. That'll make it tough to find anyone who wants this duty.
There are also raids where they have an old address, a year or more old. And the residents later comment that you could find the person by looking up the current address with their EBT card or disability check.
For all these “fusion centers”, there is very little effort to actually make sure the bad people are there before cops go in guns blazing.