Bailey v. Vinson - Are SWAT Teams Excessive Force?

The use of armored vehicles, like this LENCO Bear Cat, increased after 9-11.

On June 23, 2015 the United States 5th Circuit Court of Appeals considered the use of a SWAT team to execute a search warrant, as it relates to the people’s right to be free from excessive force. The decision of the 5th Circuit in Bailey v. Vinson should stand as a caution to police agencies that want to view the SWAT team as a fix-all tool.

The use of police SWAT teams has come under intense scrutiny in the last few years. With the media coining the term “militarization of police”, many civilians have come to question why police officers are looking like soldiers, and deploying from armored vehicles. Of course, this is all great for ratings and the media continues to stir up raw emotions by portraying American police officers in a decidedly negative light.

Justifying SWAT Teams

It is imperative for American police agencies that field a SWAT team to do their research, document threat assessments, and establish guidelines for when the team will and will not be used. When the decision is made to use a SWAT team, most controversially for search warrants, police commanders need to stand ready to provide hard evidence for their need and justification. Blanket terms like “officer safety” or “inherently dangerous” are no longer good enough. When the SWAT team is used, be ready to answer.

The use of a SWAT team should not be taken lightly. America is the “land of the free.” The police are the servants of a wary public that recognizes the need for law and order, but places serious limitations on its police officers so the people can continue to enjoy their freedoms. Careless disregard to that fact will come with serious ramifications.

Breaching windows is used another specialized skill set of SWAT teams (Author in training).

SWAT teams by definition are a “specialized” team of police officers with skill sets and equipment not normally used by patrol officers or detectives. SWAT teams should only deploy with members that have received training in team structure, movements, room entries, and other specialized procedures. In addition, it is expected that “specialized” team members have documented superior firearms skills, defensive tactics, and perhaps most importantly, a superior ability to make solid, legal decisions in a rapidly evolving and dynamic event that teams are called upon to perform.

To acquire the necessary “specialized” skills expected of a SWAT team requires regular training (NTOA recommends a minimum of 16 hours per month for part-time SWAT teams) to hone skills and keep them fresh. SWAT commanders must ensure there is a systematic training program that covers the wide variety of skill sets required of such a team. Specialized assignments on the team; such as, sniper, breacher, grenadier (gas and less lethal deployment), K-9, etc. are expected to receive additional training outside of the 16-hours per month to ensure their particular skills sets are mastered.

SWAT snipers require additional specialized training to master their skills.

Simply donning a heavy vest and helmet does not qualify an officer to perform the critical skills required of SWAT teams.

Bailey v. Vinson

Bailey v. Vinson is as an excellent review of the law pertaining to excessive force and the use of tactical teams to execute search warrants. The decision is from the U.S. 5th Circuit Court of Appeals in New Orleans, and provides direct guidance to States within the U.S. 5th Circuit. However, a decision at the Federal Appellate level has far-reaching implications for the entire country, as the Federal Appellate Courts often examine the decisions of other Appellate Courts when ruling on similar matters brought before them.

The U.S. 5th Circuit Court of Appeals in New Orleans.

At approximately 4:00 p.m., on November 16, 2011, several officers of the Gretna Police Department Special Response Team (SRT), entered Ms. Willie Nell Bullock’s residence to execute a search and seizure warrant for narcotics. Ms. Bullock, who was 66 years old at the time, was sleeping. She had recently received an ileostomy/stoma procedure, and also suffered from advanced cancer, high blood pressure, and diabetes.

The exact details of what occurred during the execution of the warrant are disputed by the involved parties, but police surveillance video confirmed that around 2 minutes after Gretna PD SRT entered Ms. Bullock’s residence, an officer escorted her outside and unfolded a chair for her to sit upon.

Long after the search warrant was over, Bullock eventually passed from her ailments. Her daughter, Bailey, filed suit on behalf of her deceased mother alleging the use and conduct of the Special Response Team (SRT), constituted excessive force. The U.S. District Court granted summary judgment to the deputies based on qualified immunity. Bailey appealed to the Fifth Circuit Court of Appeals.

Key Point of Consideration

The first issue on appeal was whether Deputy Vinson’s decision to order the use of the SRT to execute the search warrant at Bullock’s residence violated her Fourth Amendment right to be free from excessive force.

Regarding this issue, the U.S. 5th Circuit Court of Appeals stated:

“Appellants must adduce evidence of (1) an injury (2) which resulted from the use of force that was clearly excessive to the need, and (3) such excessive force was objectively unreasonable. When deciding this question, we look to whether “the totality of the circumstances justified the particular use of force. We do so by determining whether the force used is reasonable under the Fourth Amendment from the perspective of a reasonable officer on the scene at the time of the occurrence rather than with the clarity afforded by hindsight. At the core, we ask whether the officer’s action was objectively reasonable in light of the facts and circumstances confronting them.”

The plaintiff alleged that unknown officers threw Bullock to the floor, knocked out several of her teeth, kicked her in the stomach, and left her face down on the floor over 30 minutes. However, the court acknowledged there was undisputed evidence contradicting Bailey’s claims of injury to Bullock. So on the first consideration into excessive force, an injury, the plaintiff failed to provide proof.

Next, the 5th Circuit set out to determine if the use of the SRT itself, constituted excessive force.

The Court recognized that Officer Vinson testified he used the SRT because of the following justifications:

The criminal history of Ralph Jackson, the subject of the warrant
The difficulty of predicting the number of people who would be in the residence
Discrete facts provided by the confidential informant
The Bullock family’s prior threats against the police department.

(AUTHOR’S NOTE: It is exactly this type of preparation, intelligence gathering, threat assessment, and planning that can justify the use of a SWAT team for a warrant service in the eye’s of the Court and the public).

The 5th Circuit then systematically evaluated the officer’s four points of justification for the use of the SWAT team. On the first point, the plaintiff disputed Jackson’s criminal history, but she offered no evidence to counter the claim from law enforcement. This is not uncommon, as has been proven in recent high-profile police-involved shootings, where the family claims their family member was “a good boy” and they “never did anything bad”. Thankfully criminal records will show all the arrests, and convictions.

In regards to Officer Vinson’s #2 justification above, the plaintiff claimed the house was under video surveillance so the officers could determine how many people were inside. However, evidence showed only the front of Bullock’s house was under video surveillance, and it was from a far distance. With that information, the court credited the officer’s testimony about not knowing for sure how many people might be inside the residence.

In regards to the confidential informant, the plaintiff offered no evidence to refute the information provided to police by the confidential informant. Police receive anonymous tips all the time, but for the police to rely on information to justify a warrant or the use of a SWAT team, the informant must have proven to be reliable in previous investigations. Short of a documented history of reliability, the source of information must be able to provide intimate details to show first-hand knowledge of the criminal activity or threats they are claiming. The Court believed the confidential informant’s information.

Finally, the plaintiff asserted that the only threat they made against the police department was to seek legal representation if the department and Officer Vinson continued to harass them. The court noted that Officer Vinson did not provide much detail concerning the threats made and who specifically made the threats from that residence; however, the court also noted that the plaintiff’s failed to provide contradictory evidence that would render a dispute to a material fact.

Based on the totality of the circumstances, the 5th Circuit Court of Appeals found that Officer Vinson’s decision to deploy the SRT to execute the search warrant for Ms. Bullock’s residence did not constitute force excessive to the need, nor was it objectively unreasonable. Therefore, the court affirmed the grant of summary judgment for the officers in this case.

Final Thoughts

In this particular case the plaintiffs had nothing of significance to present to the Court to validate their claims. This made the decision of the Court, in favor of the police, that much easier. However, the important and highly instructional component of the U.S. 5th Circuit Court’s decision is in the area of the justification to use a SWAT team to serve the warrant.

In deciding Bailey v. Vinson, the 5th Circuit made it clear the officer’s pre-planning and clear threat assessment, played a pivotal role in the eyes of the Court to determine using the SWAT team in this case was “objectively reasonable,” and therefore did not constitute an excessive use of force.

It is very important that police departments deploying SWAT teams understand that their use cannot be based upon a whim. The use of SWAT teams has been recognized by Federal Courts to be a special type of force, only justified when the police can show due cause and need for the added armor, personnel, and unique techniques that SWAT teams employ.

Failure to properly document the need for using a SWAT teams in search warrants is a sure method for having their use viewed as excessive force. The justification must come from solid selection criteria, such as:

The alleged crime – in almost every case should be a felony
Potential for violence – documented by solid intelligence, criminal histories, and not conjecture
Suspected or known firearms or other weapons available to persons on site
The number of potential people present at the warrant location
Surveillance, security, or barricades at the warrant location.

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Aaron

Aaron is a sergeant with a midwestern police department, where he serves as a trainer, supervisor and SWAT sniper. In addition to his broad tactical knowledge, Aaron has experience in DUI, DRE and undercover narcotics investigations.