Law & Politics

Mike Riggs at Reason writes about an important decision recently handed down by the Ninth Circuit Court of Appeals but the article also gives an excellent example of poor decision reading. It begins with the headline: “Ninth Circuit to DEA: Putting a Gun to an 11-Year-Old’s Head Is Not OK”; however, the decision of the Court of Appeals isn’t that concrete on the question of “Is it ok for Law Enforcement Agents to point a gun at an 11 year old’s head?” Also in the article, before discussing the ruling of the Court, Riggs states, “Last week, the family got justice.” That isn’t quite right either. What the Court of Appeal’s decision really states is the family will get the opportunity to pursue justice.

Riggs does an excellent job giving the back ground of the case:

At 7 a.m. on January 20, 2007, DEA agents battered down the door to Thomas and Rosalie Avina’s mobile home in Seeley, California, in search of suspected drug trafficker Louis Alvarez. Thomas Avina met the agents in his living room and told them they were making a mistake. Shouting “Don’t you fucking move,” the agents forced Thomas Avina to the floor at gunpoint, and handcuffed him and his wife, who had been lying on a couch in the living room. As the officers made their way to the back of the house, where the Avina’s 11-year-old and 14-year-old daughters were sleeping, Rosalie Avina screamed, “Don’t hurt my babies. Don’t hurt my babies.”

The agents entered the 14-year-old girl’s room first, shouting “Get down on the fucking ground.” The girl, who was lying on her bed, rolled onto the floor, where the agents handcuffed her. Next they went to the 11-year-old’s room. The girl was sleeping. Agents woke her up by shouting “Get down on the fucking ground.” The girl’s eyes shot open, but she was, according to her own testimony, “frozen in fear.” So the agents dragged her onto the floor. While one agent handcuffed her, another held a gun to her head.

Moments later the two daughters were carried into the living room and placed next to their parents on the floor while DEA agents ransacked their home. After 30 minutes, the agents removed the children’s handcuffs. After two hours, the agents realized they had the wrong house—the product of a sloppy license plate transcription—and left.

In 2008, the Avinas—mom, dad, and both daughters—filed a federal suit against the DEA for excessive use of force, assault, and battery in the U.S. District Court for the Southern District of California. That court ruled in favor of the DEA, and the Avinas appealed.

Riggs says that the family got justice but the ruling of the Court of Appeals is actually a split decision. The District Court had originally granted Summary Judgment in favor of the DEA on both the claims from the parents and on behalf of the children. Which means there is no question of fact that could be heard and decided by a jury, in this case: “What is reasonable use of force?” The Court of Appeals affirmed that decision against the parents which means the court found no jury could find the force used by the agents against the parents “unreasonable” (I don’t agree with the court but that is irrelevant for now). The Summary Judgment against the claims of the children however was reversed and remanded (i.e. sent back to the lower courts to be heard again most likely in front of a jury). That doesn’t mean the children will see justice, it is possible that a jury could hear all of the evidence and still say the DEA acted reasonably.

The trouble with the article is it presents to its readers the idea that the Court took a stand and told the DEA you can no longer point a gun at an 11 year old and that just isn’t so.  Take for example this paragraph by Riggs:

While the Ninth Circuit Court of Appeals defended the agents’ rough treatment of Thomas and Rosalie, it also declared that yanking the Avina children of their beds and putting guns to their heads did, in fact, constitute the “intentional infliction of emotional distress.”

The Court didn’t actually defend the rough treatment, it merely stated that present case law establishes that Law Enforcement Agents are given wide latitude when executing search warrants in dangerous situations and that,”The agents were executing a search warrant at the residence of a suspected drug trafficker. Because this scenario presented an “inherently dangerous” situation for the agents, the use of handcuffs on the adult members of the Avina family was reasonable as it “minimize[d] the risk of harm to both officers and occupants” (from the Ninth Circuit’s decision). More importantly, the Court of Appeal’s ruling in no way declares “that yanking the Avina children of their beds and putting guns to their heads did, in fact, constitute the ‘intentional infliction of emotional distress’.” as Riggs’ next paragraph shows.

“A jury could find that the agents pointed their guns at the head of an eleven-year-old girl, ‘like they were going to shoot [her],’ while she lay on the floor in handcuffs, and that it was excessive for them to do so,” reads the Ninth Circuit’s decision, which was filed June 12. “Similarly, a jury could find that the agents’ decision to force the two girls to lie face down on the floor with their hands cuffed behind their backs was unreasonable.

While that is true, a Jury could find the other way too. The Court of Appeals is not making a prediction of the future, it is saying the past Summary Judgment was wrong (as they should have).

The problem with most legal issues is that they are thorny and complex especially when dealing with the intricacies of the path a case will follow with its back and forth between courts. Articles that report on cases should strive to be as exact as possible. The headline and the article state plainly incorrect readings of the Court of Appeal’s ruling on the matter. It could be years before a final decision is finally handed down, but people should be told to look out for it and they won’t if they think the question is settled.

Riggs does add an interesting tidbit:

As a side note: While this raid was conducted under President George W. Bush, the deputy administrator of the DEA at that time was Michele Leonhart. She is now the administrator of the DEA, thanks to an appointment by President Barack Obama. Furthermore, the Obama Administration could have declined to defend the DEA in this case. Instead, Obama’s Justice Department has decided to make the case that federal agents should be allowed to hold guns to the heads of children.

“Obama’s Justice Department has decided to make the case that federal agents should be allowed to hold guns to the heads of children.” Now that is a true statement.

– A Letter from a NY Farmer.

 

h/t Instapundit