The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTION
Plaintiff, Adonias Tuchez, asserts a 42 U.S.C. § 1983 claim against defendants, City of Sioux Falls and John Does. Tuchez alleges that defendants violated his Fourth and Fourteenth Amendment rights. Defendants move for summary judgment on all of Tuchez's claims. Docket 10. Tuchez resists.
On May 31, 2012, the court ordered oral argument on the motion for summary judgment. The scheduling order stated that "[t]he court would like the parties to be prepared to discuss all issues in this case and Szabla v. City of Brooklyn Park, Minn., 486 F.3d 385 (8th Cir. 2007) (en banc) and the cases cited therein." Docket 26. During oral argument, both parties admitted that they had not read Szabla. The court allowed the parties to submit supplemental briefs on the application of Szabla to this case. Both parties submitted supplemental briefs. The motion for summary judgment is granted.
The pertinent facts to this order in the light most favorable to Tuchez, the nonmoving party, are as follows:
On October 29, 2009, special agent Craig Scherer with the United States Department of Homeland Security, Immigration and Customs Enforcement filed an application for a no-knock search and seizure warrant for 4413
E. Ronning Drive, apartment number three, in Sioux Falls, South Dakota, a white Ford Taurus and all other vehicles associated with residents at 4413
E. Ronning Drive, apartment number three, and all persons present at the time the warrant was executed. In his affidavit in support of the application for a search warrant, Scherer stated that he and other officers were investigating a drug organization in the Sioux Falls area, specifically at an apartment at 4413
A confidential informant (CI) had informed Scherer that a person known as Armando had offered to sell the CI methamphetamine, cocaine, and guns. Armando later sold methamphetamine to the CI. Police records showed that Elmer Armando Rodriguez lived at apartment number two at 4413 E. Ronning Drive.*fn1 On October 17, 2009, Scherer instructed the CI to attend the El Paraiso dance and attempt to meet drug distributors.
The CI attended the dance and an after-hours party at apartment number three at 4413 E. Ronning Drive. Approximately 25-30 people attended the party, and numerous people arrived at the apartment throughout the night to purchase drugs, especially methamphetamine. The CI watched at least one person snort methamphetamine. The CI further observed a black pistol and two shotguns in the apartment.
In addition to the CI's information, Scherer also received information about the apartment from an anonymous caller and a source of information (SOI). An anonymous person called the Sioux Falls Police Department (SFPD) stating that Armando was a drug distributor. An SOI reported to Scherer that he/she arrived at an apartment complex that he/she believed to be 4413 E. Ronning Drive. The SOI stated that a person was standing next to a car talking to Armando, who was sitting in the car's passenger seat. The SOI told Scherer that Armando pointed a black pistol at the person standing next to the car and told the person that he "better pay." Docket 18-2 at 6. The SOI believed that the person and Armando were talking about drugs and drug debts. An undercover special agent also purchased drugs from Armando in two separate controlled buys.
Scherer further based his application for a no-knock warrant on his personal knowledge and experience in law enforcement. In his affidavit, Scherer stated that based on his experience, "narcotics traffickers often possess firearms, ammunition and other weapons." Docket 18-2 at 3. Furthermore, he knew "that persons involved with large quantities of controlled substances and currency often maintain weapons to protect their drugs and money. Based on this, the above information, and the inherent danger involved with executing drug related search warrants involving weapons, I am requesting a 'No Knock' service[.]" Docket 18-2 at 16.
Upon finding probable cause based on Scherer's affidavit, Judge Lawrence Piersol issued a no-knock search warrant. Docket 18. Tuchez concedes that Scherer's "affidavit contains the facts establishing probable cause for issuance of a no-knock search and seizure warrant." Docket 21 at 1.
On October 29, 2009, SFPD officers assigned to the Special Weapons and Tactics unit (SWAT) participated in the warrant's execution. Sergeant Steve Van't Hul, the SWAT commander, provided the assignments to the SWAT members. Officer Tim Suurmeyer was assigned to utilize a battering ram to open the apartment door. Officer David Andreasen was assigned to deploy a flashbang*fn2 manufactured by Defense Technology.
A flashbang is an incendiary explosive and is classified as a "destructive device" under the Bureau of Alcohol, Tobacco, Firearms, and Explosives' regulations. It is composed of 45 percent potassium percholoarte, 29 percent magnesium powder, and 26 percent aluminum powder. When the device is detonated, these chemicals react to produce an explosion with intense light, sound, heat, and blast pressure waves. A flashbang's detonation produces a sound rating of 174.5 decibels and creates a 1.63 PSI (pounds per square inch) of pressure for a five-foot range. Because it is a thermal-incendiary device, the flashbang creates a short-duration heat of approximately 2000E Celsius*fn3 upon detonation.
The device also produces a short, intensely bright flash, which measures an intensity of 6-8 million candela. A flashbang can combust and could cause a fire. The explosion and displacement of gases creates a shock front of force and velocity. The combination of light, noise, and smoke is intended to and does stun people within a close proximity to the flashbang's deployment. Defense Technology, the device's manufacturer, warns that deploying a flashbang may result in personal injury, property damage, or death.
Before the SWAT team executed the warrant, the subject thought to be armed left the residence. Officers arrested him during an uneventful traffic stop.
Immediately prior to the warrant's execution, Tuchez arrived as a guest in the apartment. Tuchez and another individual were seated on one of two couches in the living room. The couch on which Tuchez was seated was located just inside and to the right of the apartment's entrance. Another individual was seated on the other couch.
When the battering ram broke the door, Tuchez was sending a text message to his wife. Law enforcement ordered the occupants to get on the floor.*fn4 All three individuals got down on the floor; no one else was in the apartment. When Tuchez was on the floor, he was only a few feet away from the apartment's doorway.
Andreasen placed or rolled*fn5 the flashbang into the apartment away from the other two individuals. The flashbang detonated near Tuchez.
When the flashbang exploded, Tuchez felt a strong blast against his foot and then felt an intense burning sensation in his foot. Either the flame or the blast caused a severe burn to his foot. An ambulance took Tuchez from the apartment to the hospital, where he remained for several days. Tuchez has undergone extensive medical treatment costing in excess of $20,000.
Tuchez brought suit against Sioux Falls and John Does to be identified later. Regarding Sioux Falls's liability, Tuchez alleges that Sioux Falls's policy regarding the use of flashbangs is unconstitutional, and Sioux Falls failed to adequately train Andreasen.
Sioux Falls has a policy regarding the use of flashbangs by its officers. The policy provides that only officers who have been trained in the deployment of such devices will be certified and authorized to deploy them.*fn6 Officers must receive annual training regarding the deployment of flashbangs. Except in "extreme emergencies," prior authorization from the tactical unit/team commander is required before a flashbang may be used.
The policy states that officers may use flashbang devices "whenever the use of a less-lethal diversion would facilitate entry, enable arrest, and potentially reduce the risk of injury." Docket 20-1 at 1. Specifically, the policy allows for the use of a flashbang for "high-risk warrant services," for people presumed to be under the influence of drugs or alcohol, or for situations where it is necessary to safely resolve the incident. Docket 20-1 at 2.
Sioux Falls's policy also urges officers to consider available intelligence information, especially concerning the presence of children or elderly persons, before deploying a flashbang. The policy provides that "[w]henever possible, devices shall be deployed to an area visible to the deploying officers." Docket 20-1 at 2. The policy does not set out any parameters as to how close to a person a distraction device can be deployed. According to Officer Brent Booth, an officer and training instructor for the SFPD, officers generally try to keep the flashbang in the doorway's threshold.
Booth received an instructor certification from Defense Technology. Defense Technology requires a police department to have a certified instructor in order for the department to purchase its products. According to Booth, SFPD tries to have two certified instructors at all times. During the relevant time period, Suurmeyer (the officer who utilized the battering ram during the warrant's execution) was a certified instructor.
Defense Technology requires Sioux Falls to send its officers to training in order for Sioux Falls to purchase flashbangs from the company. During his deposition, Booth testified that the SFPD requires a new SWAT team member to go through initial SWAT team training. During the initial training, officers learn about flashbangs and how to deploy them. Sioux Falls either sends individual officers to an instructor certification program conducted by Defense Technology, or it has certified instructors, such as Booth, teach officers how to deploy flashbangs.
After the initial training, Booth stated there is no specific training program. Instead, the training is "more along the lines of deployment for HRT training, which is hostage rescue training, which is done throughout the year." Docket 23-1 at 13. Retired officers from the Los Angeles Police Department often facilitate the HRT training. Officers do not receive a certificate saying that they are authorized to use flashbangs.
When Andreasen first became a member of the SWAT team, he received training on how to deploy flashbangs. He has received periodic training as a SWAT team member, including training on how to deploy flashbangs. Andreasen's most recent training occurred in September of 2009. During his training, Andreasen was taught ...