Dukes v. Deaton

• Citation: 852 F.3d 1035
• Decision Date: 26 January 2017
• Docket Number: No. 15-14373,15-14373
• Parties: Treneshia DUKES, Plaintiff–Appellant, v. Nicholas DEATON, in his individual capacity, Steve Branham, in his individual and supervisory capacity, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

852 F.3d 1035

Treneshia DUKES, Plaintiff–Appellant,
v.
Nicholas DEATON, in his individual capacity, Steve Branham, in his individual and supervisory capacity, Defendants–Appellees.

No. 15-14373

United States Court of Appeals, Eleventh Circuit.

January 26, 2017

Mario Bernard Williams, Williams Oinonen, LLC, David E. Betts, Betts & Associates, Danielle T. Davis, The Grant Bldg, Atlanta, GA, for Plaintiff–Appellant.

Jack Reynolds Hancock, Arash Ali Sabzevari, Forest Park, GA, Wayne Steven Melnick, Freeman Mathis & Gary, LLP, Brian Richard Dempsey, Quintairos, Prieto, Wood & Boyer, P.A., Atlanta, GA, for Defendants–Appellees.

Before WILLIAM PRYOR, and ROSENBAUM, Circuit Judges, and

852 F.3d 1039

UNGARO,^* District Judge.

WILLIAM PRYOR, Circuit Judge:

This appeal requires that we decide whether a police officer who threw a diversionary device, known colloquially as a "flashbang," into a dark room occupied by two sleeping individuals, without first visually inspecting the room, is entitled to qualified immunity against a complaint of excessive force, 42 U.S.C. § 1983, and to official immunity against a complaint of assault and battery. At dawn, officers of the Clayton County, Georgia, Narcotics Unit executed a search warrant for Jason Ward's apartment. Ward and his girlfriend, Treneshia Dukes, were asleep in his bedroom. After an officer detonated a flashbang outside the apartment and another officer broke the glass in a window to the bedroom, Officer Nicholas Deaton threw a flashbang into the bedroom. The flashbang exploded near Dukes, who suffered serious burns. Dukes filed a complaint against Deaton and Deaton's supervisor, Commander Stephen Branham, for excessive force, assault, and battery. The district court granted the officers summary judgment on the grounds that they are immune from suit. Although we agree with Dukes that Deaton used excessive force, we also agree with the district court that Deaton is entitled to qualified immunity because it was not clearly established that his conduct violated the Constitution. And he is entitled to official immunity because Dukes offers no proof that Deaton intended to injure Dukes. Deaton's supervisor, Branham, also enjoys qualified immunity from the complaint against his subordinate. We affirm.

I. BACKGROUND

On July 19, 2010, a special agent with the Narcotics Unit of Clayton County, Georgia, obtained a warrant to search Jason Ward's apartment. The application for the warrant stated that a confidential informant had observed a "small quantity of a green leafy substance suspected to be marijuana" in the possession of Ward. The application also stated that Ward had several arrests for possession of marijuana, sold narcotics from his apartment, and was known to carry a silver nine-millimeter handgun. The application sought a "no-knock" provision because "drug dealers commonly utilize weapons, dogs, and barricades to hinder law enforcement in the execution of their duties." A magistrate judge approved the no-knock provision.

Ward resided in a two-bedroom apartment on the first floor of an apartment complex. The front door to the apartment lay halfway down a short hallway. A window in Ward's bedroom faced an outdoor courtyard. Adjacent to Ward's bedroom, a living room with sliding glass doors opened onto a small balcony overlooking the courtyard.

To execute the search warrant, Stephen Branham, the commander of the county SWAT team, prepared an operational plan with four teams: Alpha, Bravo, Charlie, and Delta. Alpha was the "entry team." Its job was to breach the main door to Ward's apartment and secure the persons inside. Bravo was the support team. Its job was to wait outside and enter the apartment through the sliding glass door if help was needed. Deaton was a member of Bravo team. Charlie was a diversion team. Its job was to divert Ward's attention by performing a "break and rake" on his bedroom window. A break and rake is a tactic in

852 F.3d 1040

which an officer breaks and clears out all of the glass in a window. This tactic is used to cover a room until the rest of the officers make entry. It is also used as a diversionary tactic. Delta team, composed of only Officer Suzanne Bennett, was also a diversion team. Bennett's job was to deploy a "bang-pole," a stick with a flashbang on the end of it, on the outside wall of the apartment.

The flashbang manual used by the county SWAT team explains that police use flashbangs in "high-risk warrant service" to "minimize the risk to all parties through the temporary distraction or disorientation of potentially violent or dangerous subjects." The manual classifies flashbangs as explosives that can generate heat in "excess of 2,000 degrees centigrade," a flash of light up to 80 times brighter than the flashbulb of a camera, and over 150 decibels of noise for less than one half of a second. Because flashbangs have the potential to cause "serious bodily injury," Deaton and Branham testified that they received official instruction to visually inspect an area first before deploying a flashbang. The operational plan contemplated the use of two flashbangs—one thrown by Officer Scott Malette through the front door, the other deployed by Officer Bennett with the bang-pole. But the plan vested all SWAT team members with the authority to use more flashbangs if needed.

At 5:00 a.m. on July 21, the SWAT team members met to review the operational plan. Half an hour later, the SWAT team executed the warrant. Ward and his girlfriend, Treneshia Dukes, were asleep in the bedroom of Ward's apartment. Ward was awakened by a "boom" and then heard his "window break and shattering." Next, he remembered "Treneshia screaming," telling "her to get down," then grabbing the "pistol up under my head—up under my pillow," and "kicking into the hallway." Ward never discharged his gun. Dukes heard a "boom, and then [heard] the window like rattling and shattering ..., and like as I'm waking up I just seen an object coming towards me." Dukes did not see who threw the object because she "was asleep." After the object hit her and exploded, Dukes ran into the bathroom where she was detained by the police.

The SWAT team detonated three flashbangs during the search. Bennett and Mallette deployed their flashbangs as the operational plan prescribed. Deaton deployed the third flashbang. He was the only officer outside the window with a flashbang and testified that he threw his flashbang outside the window.

Although Deaton argues that his flashbang detonated outside the apartment, we construe the facts and draw all inferences from the evidence in the light most favorable to the non-movant, Dukes. Mize v. Jefferson City Bd. of Educ. , 93 F.3d 739, 742 (11th Cir. 1996). Viewed in that light, Deaton threw the flashbang through the bedroom window where it landed near Dukes. Dukes testified that an object came through the window; that she was under a comforter; that the object landed on her right thigh; that the object "flashed" and "exploded"; that the explosion "blinded" her; and that the sound from the object "discombobulated" her, causing her run "into the [bedroom] wall." Several witnesses who saw the bedroom after the search testified that the walls were covered in black residue consistent with an explosion. For example, Andrea Ward, who was asleep in the second bedroom of the apartment the morning of the raid, testified that "the bedroom looked like it had been on fire, the window was busted out. The room was a mess and there was a black something, smoke and stuff on the

852 F.3d 1041

walls, black smoke was on the walls in the hallway also."

Dukes suffered severe burns across both thighs and her right arm that Deaton testified were consistent with the detonation of a flashbang. She was admitted to the hospital for three days after the raid. Ward was arrested and later convicted of being a felon in possession of a firearm.

Dukes filed a complaint against Officer Deaton and Commander Branham in the district court. The complaint alleged a violation of Dukes's right to be free from excessive force under the Fourth Amendment, 42 U.S.C § 1983, and state law claims of assault and battery against Deaton. She alleged a claim of supervisory liability against Branham.

After the close of discovery, Branham and Deaton moved for, and the district court granted, summary judgment. The district court inferred in Dukes's favor that Deaton threw a flashbang that landed on Dukes, but concluded that Deaton was entitled to qualified immunity against the claim of excessive force, official immunity against the claims of assault and battery, and that Branham was entitled to qualified immunity against the claim of supervisory liability.

II. STANDARD OF REVIEW

We review de novo whether the officers are entitled to immunity. Hoyt v. Cooks , 672 F.3d 972, 981 (11th Cir. 2012) (official immunity); Townsend v. Jefferson Cty. , 601 F.3d 1152, 1157 (11th Cir. 2010) (qualified immunity). Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "In an appeal of a denial of summary judgment based on qualified immunity,...