Last week, U.S. District Judge Nanette Laughrey granted summary judgement to dismiss the civil rights suit (raised under 42 U.S.C. § 1983) of Jonathan Whitworth, Brittany Whitworth, and their son. The civil rights claim stems from a February 2010 Columbia, Missouri SWAT raid that went viral when police footage was obtained by the Columbia Tribune.
At issue in the motion for summary judgement was whether the police officers’ discretionary behavior was reasonable, in the context of the situation, and whether it violated clearly established statutory or constitutional rights of which a reasonable person would be aware (Harlow v. Fitzgerald, 457 U.S. 800 (1982), Graham v. Connor, 490 U.S. 386 (1989)).
Such motions, under Rule 56 of the Federal Rules of Civil Procedure, are to be looked at in the most favorable light to the non-movant (Whitworth).
In reality, law enforcement is afforded such favorable light, via judicial imaginings of what might have been reasonable, that “qualified immunity provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335 (1986)
It is no surprise that Judge Laughrey was able to rationalize a context in which it might have been reasonable for an officer to kick Jonathan Whitworth in the head while he lay face down, unarmed, before a fully armed SWAT tactical unit.
“Thus, even if Hendrick indeed kicked Whitworth, a single kick to force swift compliance with an order, and to deter hesitation incompliance with future orders from a dangerous suspect, would be objectively reasonable in this context. It is also uncontested that Whitworth suffered no injury from this contact except pain.” Whitworth v. Bolinger
In the execution of the warrant, a paramilitary SWAT team entered the Whitworth’s family home. Police fired seven shots while in the Whitworth home. Both of the Whitworth family dogs were shot. One of the dogs was killed. The couple’s seven year old child was witness to the raid. Jonathan Whitworth was kicked in the head. Brittany Whitworth and her child were directed at gun point. As a result of the the raid, the police were able to find some drug paraphernalia and a small amount of cannabis. The police, initially, charged the Whitworths with child endangerment.
“The Court agrees that ideally officers would execute search warrants without pointing a gun at women and children not suspected of committing a crime. On the other hand, where officers are aware that a dangerous suspect and two large dogs are on the property, a reasonable officer could, in the heat of the moment, rely on such tactics to prod individuals to move swiftly through a potentially dangerous situation. This is especially true, where shouting and gun-pointing occurred as Mrs. Whitworth and P.M. stepped over Mr.Whitworth–who was lying on the floor–and the danger of resistance by any of the Whitworths was arguably at its highest. In this context, the behavior alleged by the Whitworths did not violate a clearly established constitutional right. The SWAT officers are thus entitled to qualified immunity on this claim.” Whitworth v. Bolinger
This is entirely consistent with scores of cases wherein citizens were plainly wronged and yet can find no corrective, civil recourse.
The Whitworth warrant was predicated on unnamed sources that claimed Jonathan Whitworth was a major cannabis dealer. That was more than five years after Columbia, Missouri passed a proposition to make the enforcement of cannabis the lowest priority by law enforcement. The measure passed by a 61% to 39% vote.
An estimated 130-150 SWAT raids occur everyday in the United States. That is some 40,000-50,000 paramilitary operations every year.
We are simultaneously escalating domestic paramilitary activity, increasing immunity from prosecution, and ceding budgetary control.
Original report here
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