Fifth Circuit Un-Sticks It To The Man (Again) Says Cops Can’t Be Sued For Raiding The Wrong House

The cop-friendliest circuit in the United States has done it again. Whenever there's a bit of doubt to be had, it's the cops benefiting from it when the Fifth Circuit Appeals Court handles the case.

Sure, every so often a judge or two might serve up a blistering dissent. And, even more rarely, a Fifth Circuit mishandling will be undone by the US Supreme Court, a court that is mostly inactive these days (unless it wishes to engage in judicial activism).

And when the court (apparently mistakenly) hands a win to citizens and their constitutional rights, there's always a vocal minority willing to force a rehearing so wrongs against cops can be righted by having citizens' constitutional rights wronged. (Still with me? Good.)

The latest free pass handed to cops involves something that happens far too often in the United States: the guns-out raid of the wrong residence. (h/t Courthouse News Service)

This was not as careless (or as horrific) as some of the other wrong-house raids we've covered, but a blown call at the last second resulted in innocent people being confronted by officers pointing guns and (presumably) shouting contradictory instructions.

The Waxahachie PD SWAT team received a request for assistance from the DEA to serve a search warrant at an alleged stash house located at 573 8th Street in Lancaster, Texas. The DEA provided the PD with photos of the stash house. The DEA also stated that the house did not appear to be fortified." Nor was any surveillance equipment" spotted at the residence. Good intel? I don't know. Maybe? The DEA officer also admitted he had no description of anyone occupying the targeted house, which seems like pretty important information to have before serving a search warrant.

After some quick SWAT calculus (apparently some sort of risk analysis worksheet" was involved), the raid commenced, with a Lancaster officer leading the way. Officer Zachary Beauchamp heading up a fleet of vehicles, which included the car Beauchamp was driving, a SWAT vehicle, a police cruiser driven by WPD Swat Team Commander Mike Lewis, and several unmarked DEA vehicles."

Somehow, those participating in this raid thought they could still retain the element of surprise by stopping a few houses away from the target and proceeding on foot after parking their fleet of vehicles. Beauchamp pointed the gathered officers in the direction of a house with a truck and white trailer parked in front of it. However, SWAT Commander Mike Lewis soon realized this house did not match the photos the DEA had given him.

Then, apparently surrounded by a bunch of LEOs trying to look like they weren't in the middle of a SWAT raid, Lewis made a judgment call. From the decision [PDF]:

Then Lewis looked one house to the left, he decided the layout of the front of that house matched the one in the intel photos. Lewis noticed that [f]rom left to right, it had one large window, followed by the front entry door, followed by a small window and then [four] larger windows." He also noticed that [t]he driveway was... on the left side of the property," and he believed numbers on the front of the house read 573," though the porch light obscured his view. This house, it turns out, was also the wrong house. The house Lewis identified was 593 8th Street, two doors down from the target house.

When regular people screw up at work, the worst case is that someone might get angry. When cops screw up, someone might get dead. At best, they'll have their house vandalized by people whose salaries they're paying.

Nevertheless, Lewis told the team that they were at the wrong house and instructed them to go to the house just to the left of the house where they were." That house was the home of plaintiffs Karen Jimerson, James Parks, and their two young sons and daughter. Officers ran to the front of the plaintiffs' house, deployed a flashbang, broke the front windows, and breached the door. The officers began a protective sweep and checked for occupants. They encountered two females" whom they told to get on the ground. The officers then encountered an adult male, but before they could direct him to get down, SWAT team members yelled Wrong House!"

It would seem that being wrong twice (which led to a house having its windows broken, its interior flashbanged, and its occupants terrorized) in this kind of context would be something officers should be held accountable for. That's the whole great power/great responsibility thing.

The lower court said the SWAT team leader could be sued for sending the SWAT team to the wrong house. That roughly aligned itself with the conclusions drawn by the Waxahachie Police Department, which opened an investigation into this incident. Upon the conclusion of its investigation, SWAT Commander Lewis was suspended for two days without pay, with the WPD Police Chief stating that reasonable and normal protocol was completely overlooked" during this raid and that these kinds of mistakes should not happen."

The Fifth Circuit, however, says SWAT team leader Mike Lewis did no (actionable) wrong. Mistakes will happen, says the Appeals Court. And who are we to create a deterrent effect that might result in fewer mistakes like these in the future?

The majority all but applauds the diligence of Commander Lewis, whose attention to detail led to the wrong house being raided.

Lewis was careful to confirm the house had the proper arrangement and size of windows, but only later became aware that those window features were shared by the plaintiffs' home. Moreover, Lewis's confusion was compounded by misleading intelligence. When officers arrived, the white-box trailer was not parked in front of the target house. Lewis correctly identified that fact, but then erred in redirecting the officers. Lewis was far more careful than the officers in the two opinions cited to us as showing he violated clearly established law.

But was he actually all that careful? Judge James L. Dennis begs to disagree, using facts on the record that go completely unmentioned in the majority's opinion.

Based on the undisputed facts in this case, Lewis failed to use the intelligence he received from the Drug Enforcement Agency (DEA) that would have easily allowed him to direct the SWAT team to the target house. The DEA alerted Lewis that the house number was painted on the curb and affixed to a wooden pole on the deck, and that the target house was the thirteenth one on the block. Despite having this information, Lewis did not even check the number of the house before instructing the SWAT team to execute the warrant on the Jimersons' home-separated from the target house by more than one residence-by deploying a flash bang, breaking all their front windows using the break and rake" technique, and forcing open the front door. Lewis wrote in an incident report that he believed" the numbers on the Jimersons' home to be that of the target house, despite the fact that he admitted his view was obscured because the Jimersons had a brightly glowing porch light directly above them that was causinga reflection on the siding of the house."

Regardless of Lewis" ability to see the numbers on the home, the search warrant alerted him that the target house number was written on the curb in front of the house and on a wooden pole supporting the house -not on the front of the house like at the Jimerson residence. Even more glaring are the notable physical distinctions between the two houses: while there is a prominent wheelchair ramp that protrudes from the Jimerson house with railings that appear to be waist-high, the target house had no such ramp and featured a chain-link fence around the perimeter of the property- differences evident from the photographs of the target house provided to Lewis before the execution of the warrant.

Hmm. Wonder why the majority chose to gloss over these facts? As Judge Dennis points out, Supreme Court precedent requires attention to detail in cases like these. A reasonable effort" must be made to properly identify property subject to a search warrant. Lewis failed to be reasonable, ignoring several distinctive features of the targeted property to send officers (and their flashbang grenades, etc.) into the home of innocent people who should never have been subjected to this sort of violence.

But the majority rules. Lewis cannot be sued for his carelessness, says the Fifth Circuit Appeals Court. Try not to live in a house on the same street as a house being raided, taxpayers. If you don't like it, you're free to take it up with... well, not any court in this circuit.