The city of Evansville is seeking a favorable judgment in a lawsuit brought by a local woman alleging the Evansville Police Department violated her constitutional rights when its SWAT team tossed flash grenades into her home and forced their way inside to serve a search warrant more than two years ago.
In a legal brief supporting the city’s motion for summary judgment filed Monday in U.S. District Court, city attorneys argued the force used to execute a search warrant at 616 E. Powell Ave. on June 21, 2012, was “objectively reasonable” and that officials are immune from liability.
The officers were looking for evidence of who had made anonymous Internet posts to the Topix.com message board threatening the Evansville Police Department and Chief Billy Bolin.
A 10-minute police helmet camera video, submitted by city attorneys to support their motion, shows the SWAT team’s entry into the house. In the video, Stephanie Milan, then 18 years old, can be heard yelling, “Don’t hurt me!” at the officers.
Only she and her then 68-year-old mother Louise Milan were in the house when police shattered a glass door and burst in after throwing the flash grenades inside.
Louise Milan filed the lawsuit last year. It names the city as well as Bolin and the 11 individual officers from the SWAT team who participated as defendants.
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Police came up empty-handed in the search for evidence about who had made the threatening posts but only after damaging Louise Milan’s house, handcuffing her and her daughter and seizing their computers, according to the lawsuit.
Law enforcement officers were able only to tell as a result of the search that, while there was an open wireless Internet connection in the home, the threatening posts were not made from inside the house, according to the city’s motion.
Milan’s lawyer, Kyle Biesecker, said police used more force than needed under the circumstances.
“We’re talking about a search warrant, not an arrest warrant,” he said.
Biesecker said he has 30 days to file his response with the court.
The FBI later arrested Derrick Murray, a suspected local gang leader who lived nearby in his mother’s house. He admitted in federal court he used his smartphone to connect to the wireless Internet router in Milan’s house and post the threats. Access to the router connection was not protected by a password.
The city’s motion noted at the time of the raid at 616 E. Powell, Murray was seen watching it from a porch down the street.
Murray told a Courier & Press reporter a week after the SWAT raid he believed he was a suspect. He later pleaded guilty to federal charges related to the threats.
QUALIFIED IMMUNITY
City attorneys Keith Vonderahe and Robert Burkart argued in the motion that police are protected by the legal principle of qualified immunity. In it, the U.S. Supreme Court has ruled that “government officials performing discretionary functions generally are shielded from liability for civil damages” as long as their conduct does not “clearly” violate established “statutory or constitutional rights.”
However, Milan’s lawsuit alleges police violated her constitutional right against unreasonable search and seizure by breaking into the home and seizing an Internet router and computer equipment. She also claimed police were negligent and caused her emotional distress.
The lawsuit claims: “The officers smashed Milan’s window and storm door and threw in two flash-bang grenades that created property damage in addition to the destroyed window and storm door. The officers used flash-bang grenades despite the fact that [there] were no threatening suspects visible. Milan and her daughter were ordered on to the floor at gunpoint, handcuffed and paraded in front of their neighbors into police vehicles. Both were detained and questioned by the officers.”
Vonderahe said video of the warrant being served was submitted as evidence because he thinks it shows how officers were professional and respectful toward the Milans after they realized the two women were not threats.
In the helmet cam video, an officer can be seen peering into Milan’s front storm door and pounding it as he announced, “Police department, search warrant, police department, search warrant.”
Immediately afterward, officers are seen breaking in the front window and door as the explosion of the flash grenades are heard, and then entering the home with guns up. A female screams as police step through the doorway as they command, “Get down, get down.”
Louise Milan was standing on the stairs when police entered; her daughter was in the living room watching TV.
Both were cuffed by officers inside the home.
“This is just for our safety,” said an officer to Louise Milan as another handcuffed her. “Someone’s going to explain what’s going on here in a second.”
“Please,” she responds.
Afterward, officers are seen and heard joking about the incident and breaking Milan’s window while standing in Milan’s living room.
“That (expletive) ram hit a lot harder than I thought it going to hit,” said an officer as the others laughed.
City officials have said the city paid for the damages to Milan’s house caused by the raid.
But Biesecker said Monday the lawsuit is about more than that.
“There are a lot of different things that they could have done,” he said. “Ms. Milan, all she wants is some acknowledgment that police were wrong.”
The city’s legal brief acknowledges, “Further investigation was necessary to determine if the person posting the threats from the IP (Internet provider) address was the actual residence subscriber to the IP address or someone else.”
However, it also argues searching the home to examine the Internet router and computers was necessary to do that, and after assessing the safety risk it was determined that using the SWAT team was the way to do that.
UNPRECEDENTED THREAT ASSESSMENT
According to the city motion, the Evansville Police Department took emergency action to find the house from where the threats were made.
Police were justified in their approach to serving the warrant by “the unprecedented threat assessment” that was made when the situation was scored for officer safety, according to the city.
“Further investigation led EPD to associate known criminals to the residence who had violent histories, gang association, weapons related charges or possessed weapons,” according to the city’s motion.
The motion argues that police records showed three people with criminal records and possible gang affiliations were associated with the house: Anthony Milan Sr., Anthony Milan Jr. and Marc Milan.
“Because of the threats and circumstances, the threat assessment total was 70, which was the highest that Officer (Mike) Gray ever remembered,” according to the city motion. “With the level of threat that existed and the potential danger to the officers, there was no way the EPD would send an officer to walk up and just knock on the door of the residence.”
Vonderahe said based on the intelligence police had gathered, SWAT had to enter the home in the manner they did, adding the situation should be evaluated in the circumstances at the time and not in hindsight.
In questioning by attorneys, Louise Milan said Anthony Milan Sr. was her son and Anthony Milan Jr. her grandson, but they only occasionally visited for short periods of time. She said Marc Milan was her husband’s nephew and she knew of him but didn’t know him.
“To me, they flew through a ton of stop signs. There was no evidence that there were actually explosives, weapons or guns there,” Biesecker said. “They were acting on bits and pieces of information that don’t make any sense.”
Biesecker also noted police invited a television news crew to be present to cover the incident.
“Bringing civilians with you to film it when there is such a threat?” he said.
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Staff Writer Zach Evans contributed to this report
