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Use of Flash-Bang May Constitute Excessive Force

Jack Ryan

In Boyd v. Benton County; City of Corvallis et al. 374 F.3d 773 (9th Cir. 2004), the United States Court of Appeal for the 9th Circuit held that the use of a flash-bang while executing a warrant may constitute excessive force under the 4th Amendment. The court then granted the involved officers qualified immunity because the law was not clearly established at the time the officers used the flash-bang in 1997. The facts in Boyd began with an armed robbery of a jewelry store. The two robbers were described as a white male with a limp and an Hispanic male of average height. The duo, who stole a .357 magnum in the robbery fled in a blue Geo. As they fled the store owner shot out the back window of the Geo.

During the investigation, officers developed information that Dalebout was involved in the robbery and may be hanging around at “Charlie the Mexican’s” house. The police conducted a surveillance of the house, observed a Geo with a smashed rear window, and observed numerous people coming and going.

At some point during the surveillance, officers observed Dalebout and Knudsen, both white males, leave the apartment and enter the blue Geo. The officers noted that Knudsen walked with a limp. As police tried to stop the two subjects they fled. Following a high-speed pursuit they were apprehended. Dalebout was armed, however the stolen .357 was not recovered. As a result of the arrest, officers obtained a search warrant for the apartment that Dalebout and Knudsen had exited.

Knowing that one of the robbery suspects, the Hispanic male, had not been arrested and knowing that the .357 magnum had not been recovered, the officers decided to use the Benton County SWAT team to make entry.

At a pre-raid briefing, officers were briefed concerning a loft in the apartment that would provide a dangerous area from which a sniper could shoot; the un-recovered .357; the subject still at-large and the fact that someone from the apartment had attempted to buy another firearm. Additionally, officers were told that there may be five to eight people sleeping in the apartment when the raid was to be executed. A decision was made to use a flash-bang device to provide a distraction while the officers made their entry. No one at the briefing objected to the use of the device.

During the raid, the flash-bang was put into the house by volunteer Deputy Ellis. The flash-bang landed next to Boyd, who was asleep. Boyd suffered burns as a result of the flash-bang igniting.

In reviewing the case the United States Court of Appeal for the 9th Circuit noted that the officers had prior notice that there may be as many as eight people sleeping in the house, many of whom had nothing to do with the robbery and were thus, innocent bystanders. Notwithstanding this knowledge, the officers utilized the flash-bang with giving any warning to the occupants and without considering any alternative means to their entry. The court concluded: “Nonetheless, given the inherently dangerous nature of the flash-bang device, it cannot be a reasonable use of force under the 4th Amendment to throw it ‘blind’ into a room occupied by innocent bystanders absent a strong governmental interest, careful consideration of alternatives and appropriate measures to reduce the risk of injury.”

The court also concluded that all of the officers participating were an “integral part” of the conduct and could be held liable for a constitutional violation.

The court then granted all of the officers qualified immunity after determining that the law was not clearly established on flash-bangs in 1997 when the raid occurred.


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