First Amended Complaint -T. Dukes

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

TRENESHIA DUKES, )

)

)

Plaintiff, ) CFAN: 1:12-cv-02517-CAP

)

v. )

)

SUZANNE BENNETT )

in her individual capacity; )

NICHOLAS DEATON in )

his individual capacity; )

STEVE BRANHAM, in his )

individual and supervisory capacity; )

and )

JOHN DOE, in his individual )

capacity, )

)

Defendants. ) JURY TRIAL DEMANDED

PLAINTIFF’S FIRST AMENDED COMPLAINT

Plaintiff, Treneshia Dukes (“Ms. Dukes”) files her first amended

Complaint under Fed. R. Civ. P. 15 (a)(1). Ms. Dukes files this civil rights

action for money damages pursuant to 42 U.S.C. §§ 1983 and 1988, the

Fourth Amendment to the United States Constitution, and the Constitution

and laws of the State of Georgia, to redress the deprivation of Ms. Dukes’

Case 1:12-cv-02517-CAP Document 8 Filed 08/16/12 Page 1 of 36

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rights caused by named Parties to this civil rights action and the one party

not yet discerned and thus named as John Doe. In further support of her

Complaint, Ms. Dukes alleges, upon verifiable and credible information, the

following:

INTRODUCTION

Ms. Dukes alleges that Defendants violated her Fourth Amendment

right to be free from excessive force, amongst other violated rights under

both state and federal law, by supervising, directly participating in, and/or

otherwise demonstrating liable conduct regarding the following incident or

similar incident: on July 21, 2010, at approximately 5:30 a.m., while

executing a search warrant, and under the supervision of Defendant Steve

Branham, Defendants Nicholas Deaton, Suzanne Bennett, and John Doe of

the Clayton County Police Department’s S.W.A.T. violated Ms. Dukes’

Fourth Amendment right, amongst other rights, by throwing a flash bang

grenade through a bedroom window onto Ms. Dukes as she laid asleep

(pregnant) in her bed, which was located approximately three feet from said

window. Ms. Dukes suffered severe, excruciating physical injuries as a

direct and proximate result of Defendants’ conduct. Ms. Dukes spent

approximately three (3) days in Grady Memorial Hospital’s Intensive Care

Burn Unit. She was then in a wheel chair for a long period of time.


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Significantly, Defendants had no arrest warrant for anyone located at 5758

HWY 85 Apt. # 17-B. And, Ms. Dukes was not charged with any crime in

connection with Defendants’ search of said premises. Less than one ounce of

marijuana was found pursuant to the executed search.

JURISDICTION

1.

The event in question occurred in Clayton County, Georgia.

2.

Jurisdiction is based upon 28 U.S.C. §§ 1331, 1332, and 1343, and on

the supplemental jurisdiction of this Court to adjudicate claims arising under

state law pursuant to 28 U.S.C. § 1367(a).

VENUE

3.

Venue is proper in this district pursuant to 28 U.S.C. § 1391 and L.R.

3.1, because the events or omissions giving rise to the Plaintiff’s claims

occurred in this district.

PARTIES

4.

At all relevant times to this Complaint, Ms. Dukes was a citizen of the

United States and a resident of Clayton County, Georgia. She submits


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herself to the jurisdiction and venue of this Court and is entitled to bring this

action under Georgia and federal law for all general, special, compensatory,

punitive and permissible damages.

5.

At all relevant times, Ms. Dukes had legal rights established by the

Constitution of the United States, the Constitution of the State of Georgia,

and laws set forth by federal and state statutes.

6.

On July 21, 2010 Defendant Nicholas Deaton (hereinafter referred to

as “Defendant Deaton”) deployed a flash bang grenade at 5758 HWY 85

Apt. # 17-B, under the color and pretense of federal and state laws as well as

the ordinances, regulations, customs, and usages of the State of Georgia and

the policies, orders, procedures, rules, and regulations of Clayton County

Police Department Police. Evidence indicates that Defendant Deaton

intentionally threw said flash bang grenade through the bedroom window of

the room that Ms. Dukes occupied while asleep in a bed located

approximately three feet from that window. Defendant Deaton’s conduct

intentionally or recklessly caused Ms. Dukes to suffer severe, traumatizing

injuries that included third degree burns all over her body and subsequent

scarring. Defendant Deaton’s conduct rose to the level of deliberate


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indifference to Ms. Dukes’ constitutional right to be free from objectively

unreasonable force. Defendant Deaton is being sued in his individual

capacity. Defendant Deaton is a resident and citizen of the State of Georgia

who may be served with process at 7911 North McDonough Street,

Jonesboro, GA 30236, which is his place of employment.

7.

On July 21, 2010 Defendant Suzanne Bennett (hereinafter referred to

as “Defendant Bennett”) deployed a flash bang grenade at 5758 HWY 85

Apt. # 17-B, under the color and pretense of federal and state laws as well as

the ordinances, regulations, customs, and usages of the State of Georgia and

the policies, orders, procedures, rules, and regulations of Clayton County

Police Department. Defendant Bennett intentionally threw said flash bang

grenade through the bedroom window of the room that Ms. Dukes occupied

while asleep in a bed approximately three feet from that window. Defendant

Bennett’s conduct intentionally or recklessly caused Ms. Dukes to suffer

severe, traumatizing injury. Defendant Bennett’s conduct rose to the level of

deliberate indifference to Ms. Dukes’ constitutional right to be free from

objectively unreasonable force. Defendant Bennett is being sued in her

individual capacity. Defendant Bennett is a resident and citizen of the State


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of Georgia who may be served with process at 1108 Claridge Park Drive,

Morrow, GA 30260.

8.

On July 21, 2010 Defendant John Doe deployed a flash bang grenade

onto to Ms. Dukes, through her bedroom window, at approximately 5:30

a.m. as she laid sleep in her bed, which was located approximately three feet

from the window the flash bang grenade came through. John Doe deployed

said flash bang grenade under the color and pretense of federal and state

laws as well as the ordinances, regulations, customs, and usages of the State

of Georgia and the policies, orders, procedures, rules, and regulations of

Clayton County Police Department. Said Defendant is sued in both his or her

individual capacity and at all times relevant, was a S.W.A.T member present

at the subject address where he or she deployed a flash bang grenade onto

Ms. Dukes. John Doe is fictitious but evidence through discovery should

reveal his or her identity for service of process. Evidence warrants keeping

John Doe as a Defendant through discovery, because Defendants claim no

one through a flash bang through the subject window even though evidence

and testimony indicates that a flash bang was thrown through the window.

Ms. Dukes expressly asked Clayton County officials, including Defendant

Branham, to reveal John Doe’s identity but they refused to do so.


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9.

Defendant Captain Steve Branham (hereinafter referred to as

“Defendant Branham”) at all relevant times had supervisory and managerial

authority, as commander of the Clayton County Special Weapons and

Tactics Team (“S.W.A.T.”), over Defendants Deaton, Bennett, and John

Doe, and ordered those three Defendants to deploy flash bang grenades1 on

July 21, 2010 at 5758 HWY 85 Apt. # 17-B. Defendant Branham became

supervisor of S.W.A.T. in June 2007. In his supervisory and managerial

capacity Defendant Branham was responsible for developing the tactical

plan regarding the use of flash bang grenades at 5758 HWY 85 Apt. # 17-B,

on July 21, 2010. Defendant Branham is responsible for following all

relevant policies, orders, procedures, rules, and regulations of Clayton

County Police Department. Clayton County Police Department and/or

Clayton County delegated to Defendant Branham policy making authority,

policy implementation and/or policy enforcement responsibility/authority

1 Our expert testimony established that there is no fundamental difference

between the word flash bang grenade and noise flash diversionary device. In

fact, courts have stated the term flash bang grenade is a mere euphemism for

the word “bomb.” See Estate of Escobedo v. City of Fort Wayne, 2008 U.S.

Dist. Lexis 36852, n. 2 (N.D. Ind. 2008) (stating, “[i]ndividual defendants

usually refer to these items as “distraction devices” rather than flash bangs

or flash bang grenades. The Court will refer to them as flash bang grenades

because that term most accurately describes what the items do and what they

are used for ….) (citing Unites States v. Jones, 214 F. 3d 836, 837-38 [7th

Cir. 2000] [calling them concussion grenades and ‘bombs’ ….”)


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regarding Clayton County Police Department’s S.W.A.T. Defendant

Branham failed to ensure that only officers (under his command) who were

certified in the use of flash bang grenades actually deployed those grenades

either in the homes of citizens or in some cases flash bang grenades actually

thrown (deployed) directly at citizens. Defendant Branham also violated

applicable rules and regulations by failing to ensure that officers under his

command received documented training in the use of flash bang grenades

and training that ensured that those officers were proficient in the use of

flash bang grenades. Defendant Branham’s conduct proximately caused the

severe injuries suffered by Ms. Dukes. Defendant Branham is being sued in

his individual and supervisory capacity and may be served with process at

7911 North McDonough Street, Jonesboro, GA 30236, which is his place of

employment.

10.

Ms. Dukes has sent Defendants a spoliation letter. (See Ex. 1.)

11.

Ms. Dukes has complied with all pre-requisite Notice of

Claim requirements. (See Ex. 1, for a copy of this Notice and copy of

spoliation letter.)


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FACTS

A. Failure To Have Any Written Policy Or Procedure Regarding

The Use of Flash Bang Grenades

12.

Clayton County Police Department has admitted that on and before

July 21, 2010, it had no written policy or standard operating procedures

regarding the use of flash bang grenades.

13.

Other police departments within, and without, the Atlanta metro area

do have specific written policies and procedures regarding the use of flash

bang grenades.

B. Clayton County PD Knows Flash Bang Grenades Can Be

Lethal and Thus Cause Death Or Serious Bodily Injury

14.

At the time of the subject incident, Clayton County Police Department

had failed to specifically classify flash bang grenades as either lethal, or less

than lethal, devices in its Policy and Procedural Manual (“SOP Manual”).


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15.

A fact relevant to the allegation asserted in paragraph 14 of this

complaint is the fact that Clayton County Police Department’s SOP Manual

defines deadly force as “[a]ny force that would be expected to cause death or

serious bodily injury when utilized.”

16.

A fact relevant to the allegations asserted in paragraphs 14 and 15 of

this complaint is the fact that the manufacture of the flash bang grenades

used by Clayton County Police S.W.A.T. Officers while entering Apt. # 17-

B, located at 5758 HWY 85, has warned Clayton County Police Officers that

said flash bang grenades may cause serious bodily injury or death. (See

Ex. 2, for copy of article which discusses the death of a police officer from a

flash bang grenade.)

17.

The flash bang grenade that injured Ms. Dukes is strictly regulated by

the Bureau of Alcohol, Tobacco, Firearms and Explosive as a destructive

device. This is the same classification for grenades. (See also, Ex. 3, for a

copy of incident report by Defendant Branham which demonstrates

S.W.A.T. members’ fear of coming close to a flash bang—they used a robot

when a flash bang failed to detonate in a field exercise.)


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C. The Use Of Force Incident

18.

On July 21, 2010, the Clayton County Police Department’s S.W.A.T.

executed a search warrant at 5758 HWY 85 Apt. # 17-B. While executing

said search warrant, members of S.W.A.T. deployed at least three (maybe

more) flash bang grenades inside 5758 HWY 85 Apt. # 17-B. Defendants

Bennett and Deaton were issued flash bang grenades and did deploy those

grenades at the subject residence on the date and time in question.

19.

The use of the flash bang grenades referred to in paragraph 18

constitutes a use of force by members of Clayton County Police

Department’s S.W.A.T.

20.

On July 21, 2010 Officer Mallette of the Clayton County Police

Department’s S.W.A.T. deployed a flash bang grenade no more than four

feet from the front door entrance of 5758 HWY 85 Apt. # 17-B.

21.

On July 21 2010, at 5758 HWY 85 Apt. # 17-B, members of Clayton

County S.W.A.T. performed a brake and rake on the window of the bedroom

in which Ms. Dukes was sleeping. Evidence (e.g., the incident report)


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indicates that Defendant Bennett of Clayton County S.W.A.T., then,

intentionally deployed a flash bang grenade through the window of the

bedroom where Ms. Dukes was sleeping in a bed located approximately 3

feet from that window. Defendant Bennett intentionally threw the flash bang

grenade onto the bed where Ms. Dukes was asleep, because she looked in

the window and saw Ms. Dukes sleeping on the bed located approximately

three feet from the window, before throwing the flash bang grenade. Or

Defendant Bennett deliberately threw said flash bang grenade blindly

(recklessly). Said flash bang grenade thrown by Defendant Bennett landed

on Ms. Dukes and severely burned her body, causing her to spend

approximately three days in the burn unit of Grady Memorial Hospital and

to spend a long period of time afterwards in a wheel chair..

22.

Defendant Bennett and other S.W.A.T members deliberately chose to

perform a brake and rake on, and then throw a flash bang grenade through,

the bedroom window where they knew Ms. Dukes and Jason Ward were

sleeping at approximately 5:30 a.m., evidenced by the fact that the subject

apartment had a different ground-level side bedroom window, with much

easier access that could have been used as a “distraction” location, and also

evidenced by the fact that S.W.A.T supposedly had been monitoring this


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location, with real time surveillance, for quite some time before executing its

search warrant.

23.

Defendant John Doe of Clayton County S.W.A.T. intentionally

deployed a flash bang grenade through the window of the bedroom where

Ms. Dukes was sleeping in a bed located approximately 3 feet from that

window. Defendant John Doe intentionally threw the flash bang grenade

onto the bed where Ms. Dukes was asleep, because he or she looked in the

window and saw Ms. Dukes sleeping on the bed located approximately three

feet from the window, before throwing the flash bang grenade. Said flash

bang grenade thrown by Defendant John Doe landed on Ms. Dukes and

severely burned her body, causing her to spend approximately three days in

the burn unit of Grady Memorial Hospital.

24.

Defendant Deaton of Clayton County S.W.A.T. intentionally

deployed a flash bang grenade through the window of the bedroom where

Ms. Dukes was sleeping in a bed located approximately 3 feet from that

window, because he looked in the window and saw Ms. Dukes sleeping on

the bed located approximately three feet from the window, before throwing

the flash bang grenade. Or Defendant Deaton deliberately threw said flash


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bang grenade blindly. Said flash bang grenade thrown by Defendant Deaton

landed on Ms. Dukes and severely burned her body, causing her to spend

approximately three days in the burn unit of Grady Memorial Hospital.

D. Facts Demonstrating That Flash Bang Was Thrown Through

Subject Bedroom Window Onto To Ms. Dukes

25.

Credible evidence demonstrates that (1) the flash bang grenade that

Defendants deployed through a bedroom window of 5758 HWY 85 Apt. #

17-B burnt a hole through a blanket that covered Treneshia Dukes as the

flash bang grenades hit her while she was sleeping in bed; (2) the blanket

with the burnt hole was never collected as evidence; (3) no photographs

were taken of the blanket; and (3) the blanket cannot be seen in any of the

expansive photographs taken of every other room inside 5758 HWY 85 Apt.

# 17-B, so a reasonable jury could conclude the blanket was in the bedroom,

which no expansive photograph was taken of.

26.

Credible evidence demonstrates expansive photographs were taken of

every room except the bedroom where Ms. Dukes claims the flash bang was

thrown into from her bedroom window. Furthermore, the timing of Officer

Mallette throwing a flash bang nearly 20 feet from the front door and hitting

Ms. Dukes dead on as she ran swiftly pass the hallway is unbelievable,


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especially given the fact that Officer Mallette and other S.W.A.T. members

who throw flash bangs from front doors routinely state that they throw flash

bangs 2 to 4 feet (not nearly 20 feet) from the front door because they are

trained to throw the flash bangs near the front door, after that door is broken.

27.

Credible evidence demonstrates that photographs were taken of

damaged property within the apartment such as the door that was broken

with a ram. But no photograph was taken of the broken window that

S.W.A.T. broke via a brake and rake and through which Defendants Deaton,

Bennett, and John Doe threw a flash bang grenade. (See Ex. 8, for a copy of

Affidavit of Ricky Marion, who was maintenance supervisor at the time of

the subject incident. His affidavit demonstrates that the subject bedroom

window was broken and that credible evidence indicates that a flash bang

was thrown through the bedroom window.) Mr. Marion’s affidavit describes

what he saw when he entered the subject bedroom. That is important when

viewed in conjunction with the fact that no member of Clayton County’s

S.W.A.T. or police department took expansive pictures of the room.


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28.

Eye witness testimony of people who entered the subject bedroom on

the same day of, and shortly after, the incident stated that the room had black

matter like substance on the back wall above the bed where a head board

would be placed and that this black matter like substance extended to the

furthest wall to the right of the bedroom entrance. (See Ex. 8.) Also, this

black matter is the same black matter that is emitted from the flash bang

grenades Defendant Deaton, Bennett, and John Doe deployed at the subject

residence. Witness testimony also states that the room clearly looked as if a

bomb had gone off in it.

29.

After witnessing Treneshia Dukes’ severe burns, according to witness

testimony, one Clayton County Police Officer said “Ya’ll fucked up, this

was not supposed to happen. Ya’ll need to get this cleaned up quickly. You

guys messed her up real bad, I told ya’ll this was not supposed to happen

like this.”

30.

Verifiable information indicates that Clayton County S.W.A.T. had a

pattern and practice of performing break and rakes on bedroom windows and

then throwing flash bang grenades through those bedroom windows. So a


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claim that relevant Defendants threw a flash bang through Ms. Dukes’

bedroom window is beyond plausible.

E. Failure To Document Ms. Dukes’ Injuries

31.

An examination of relevant records demonstrates that no member of

Clayton County Police Department took photographs of Ms. Dukes’ injuries.

That failure violated established policies and procedures.

32.

Relevant records demonstrate that Defendants violated established

policy and procedure by failing to ensure that a separate use of force report

was done regarding Ms. Dukes’ injuries until after Ms. Dukes’ lawyer

decided to provide Clayton County Police Department with a final chance to

investigate this issue before filing suit, by having Ms. Dukes file a complaint

on July 7, 2011-- a notice of claim and request for investigation had been

sent shortly after the incident, to no avail. (See Ex. 4, for copy of expert

report, which discusses the significance of this failure.)


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33.

During the Internal Affairs investigation, no one interviewed the

victim, Ms. Dukes. Ms. Dukes’ expert discusses the low-grade investigation

that Clayton County Police Department performed. (See Ex. 4, for a copy of

expert report.)

F. Facts Demonstrating Gross Pattern and Practice of Defendant

Branham Failing To Train Defendants And Other S.W.A.T.

Members2

The following facts should be considered in light of the fact that the

need to train officers on proper use of flash bang grenades is so obvious that

all officials are on notice that such training is required.

34.

Defendant Branham became supervisor and manager of Clayton

County Police Department’s S.W.A.T. in June 2007. Notably, from July 18,

2007 to July 21, 2010 no documented training occurred under his

supervisory and managerial authority. That said, Defendant Branham admits

2 Currently, the only evidence that Defendant Branham was the official

policy maker for Clayton County is a blanket statement. To save time and

resources, Ms. Dukes has not named local government Clayton County as a

defendant that had actual or constructive knowledge of the failure to train

and other egregious conduct that directly and proximately caused Ms.

Dukes’ severe injury. However, if this Court permits discovery and that

discovery reveals stronger evidence that implicates Clayton County under a

theory of “monell liability,” Ms. Dukes will move this Court to grant leave

to amend her complaint accordingly. The issue is not going after an entire

county just for the sake of doing it.


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that that there exist no documented training for the use of flash bang

grenades for over three years prior to Ms. Dukes being nearly blown up by

one of these bombs on July 21, 2010.

35.

On top of admitting that no documented training exist, members of

Clayton County Police Department, including Defendant Branham, failed to

ensure, from at least July 19, 2007 through July 21 2010, that Defendants

Deaton and Bennett, and all other S.W.A.T. members other than Steve Long,

received written test or proficiency scores regarding the use of flash bang

grenades. This is a violation of Clayton County Police Department’s own

policy and procedure, which states “officer proficiency will be documented

in all training that is use of force related.”

36.

Also, deliberate indifference is shown by taking the above facts about

the failure to train in light of another fact: since 2007 Clayton County

S.W.A.T has used approximately 209 flash bang grenades in the homes of

citizens and credible information clearly indicates several, different Clayton

County S.W.A.T. members, with no documented training, have deployed

flash bang grenades during that time.


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37.

A review of Clayton County S.W.A.T.’s field training reports from

2009 through 2010 (2007 and 2008 were requested but none supposedly

exist) demonstrates that flash bang devices are mentioned approximately 3

times out of nearly thirty training reports. Only once was a name associated

with the deployment of a flash bang grenade and that name was not one of

the named Defendants.

38.

A review of Clayton County S.W.A.T.’s training reports, incident

reports, and all use of force reports (from 2004-2010) demonstrate that prior

to severely burning Ms. Dukes with a flash bang (1) S.W.A.T. members

burned/injured other people with flash bangs, yet, Defendants and other

relevant S.W.A.T. members violated policy and procedure by failing to write

a separate use of force report related to those burned/injured people; (2)

S.W.A.T. threw a flash bang directly at a person, using the flash bang as a

bomb (deadly) weapon; and (3) S.W.A.T. opened the door of a very small

spaced bathroom and blindly threw at least one flash bang in the bathroom

without any evidence of trying to figure out if someone was in the bathroom

or not. These are just a few examples of the untrained and nonsensical use of

these highly dangerous bombs. Essentially, Clayton County S.W.A.T. thinks


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flash bang grenades are toys, to be used indiscriminately without any regard

for human life.

39.

On top of failing to document persons burned/injured by flash bang

grenades with a separate use of force report as required (or with photographs

of burn injuries), the Commission on Accreditation for Law Enforcement

Agencies found that Clayton County Police Department, as a whole, did not

track use of force incidents during 2007 and 2008. Relevantly, during those

years, Clayton County S.W.A.T. deployed nearly 100 flash bang grenades—

a reasonable jury could find that Clayton County S.W.A.T. injured

people but failed to report those injuries based on its failure to

document known injuries with separate use of force reports. Notably,

Clayton County S.W.A.T. has used Tasers and injurious open hand

techniques against citizens, yet, still failed to write a separate use of force

report, because these reports go up the chain of command, in accordance

with relevant SOP. (See Ex. 4 Expert Report for discussion on this issue).


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40.

The same day that Defendants severely injured Treneshia Dukes,

Clayton County S.W.A.T. held a documented, dedicated flash bang grenade

training session, which demonstrates they could have held documented

training during the three years they failed to do any training. Nevertheless,

this training violated Clayton County policies and procedures because it did

not include any documented evidence of test being given or proficiency

scores or any evidence that field exercises were performed and if any were,

there is no evidence who performed the handling and scenario-based

exercises. That failure also directly contradicts the express language of the

training manual allegedly handed out during this documented training

session, a manual that Clayton County Police Department now states

represents its policy on the use of flash bang grenades.

41.

Clayton County Police Department, including Defendant Branham,

never placed Defendants Deaton or Bennett, or any other S.W.A.T member,

on administrative leave after one of them intentionally or blindly threw a

flash bang grenade on Ms. Dukes, causing her to be severely traumatized

and injured. At least from 2007, Clayton County S.W.A.T. never placed any

officer on administrative leave after that officer injured/burned someone


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with a flash bang grenade. That is important because Clayton County SOP

Manual states that “[w]hen an officer’s use of force results in death or

serious bodily injury, the officer will be placed on Administrative Leave

pending investigation.” No investigation was performed until after Ms.

Dukes requested an investigation nearly a year later. A rational jury could

find that failure as deliberate indifference to respecting policies and

procedures that are in place to help prevent severely injuring citizens with a

weapon (flash bang grenade) that can cause death.

G. Other Facts Related To Indiscriminate Use of Flash Bang

Grenades By Clayton County’s S.W.A.T.

42.

Clayton County S.W.A.T. has deployed flash bang grenades while

executing regular search warrants, search warrants that do not have no-

knock provisions.

43.

During the past eight years, Clayton County S.W.A.T. has deployed

flash bang grenades while executing search warrants when the application

for said search warrants indicates that the person suspected of criminal

activity has no prior criminal record or is not a violent criminal. For

example, Jason Ward, the renter of the subject apartment that S.W.A.T.

searched On July 21, 2010 had a non-violent criminal history, according to


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the criminal background check performed by S.W.A.T. before executing its

search. (See Ex. 5, p. 2, for a copy of relevant criminal background. This

Court should also note, as the Defendants will undoubtedly point out, that a

confidential informant also allegedly stated that Jason Ward was seen in

possession of a firearm and a firearm was found in the subject apartment.)

44.

From January 9, 2009 through November 5 2010, members of Clayton

County S.W.A.T. deployed approximately 150 flash bang grenades while

executing approximately 121 search warrants.

COUNT ONE

42 U.S.C. §1983 –VIOLATION OF CIVIL RIGHTS

(As Against Defendants John Doe, Dean, and Bennett)

45.

Ms. Dukes now fully incorporates paragraphs 6,7,8, 16-30, as if each

were set forth verbatim herein, and any other paragraph this Court may deem

applicable.

46.

Defendants violated Ms. Dukes clearly established constitutional right

to be free from excessive use of force by throwing a flash bang grenade, at

approximately 5:30 a.m., directly onto Ms. Dukes’ through her bedroom

window, while she was asleep in her bed, which was located approximately


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three feet from the subject window. Defendants knew or had strong reason to

know that Ms. Dukes was present in the apartment because their alleged

tactical plan demonstrates that they had real time surveillance on the

subject apartment, and Ms. Dukes had been seen, by that real time

surveillance, going into the apartment. Indeed, the alleged tactical plan states

“enter and secure … all those persons inside.” Throwing a flash bang

grenade intentionally or blindly into a bedroom window at 5 a.m. onto

people as they sleep is objectively unreasonable because it is a gratuitous use

of deadly force. Defendants did not face an imminent threat of grievous

bodily injury for themselves or another person. There was no objective

evidence indicating that two sleeping people (Ms. Dukes and Jason Ward)

posed an imminent threat. Also, no warning was given before using the flash

bang grenade as a deadly weapon, although a warning could have been given

since the occupants were sleep at 5 a.m. in the morning.

COUNT TWO

SUPERVISORY LIABIITY

(Against Defendant Branham)

47.

Ms. Dukes now fully incorporates paragraphs 9, 10, 12-44, as if each

were set forth verbatim herein, and any other paragraph this Court deems

applicable.


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48.

Defendant Branham authorized and tolerated, as an institutional

practice and custom, the excessive use of force by Clayton County S.W.A.T.

team officers, by failing to ensure that defendants received adequate (any)

training to help ensure that Defendants did not subject Ms. Dukes and other

Georgia citizens to excessive force in violation of their rights under the

Fourth Amendment of the U.S. Constitution. This is evidenced by

admissions that no documented training exist between July 18, 20073 and

September 21, 2010. Also, the fact that field training reports do not evidence

any adequate training—dropping flash bang grenades out of helicopters onto

roof tops is not adequate training. This conduct shows deliberate

indifference.

3 Notably, one odd issue surrounding the alleged July 18, 2007 training is

that when Ms. Dukes first asked for a copy of all training field reports for

2007-2008, Defendant Branham answered by saying there were no training

records for that year. Then Ms. Dukes brought to his attention that saying

there exist no training records for that year directly contradicts a previous

statement that flash bang training was done in 2007. Suddenly, Defendant

Branham produced a pencil copy of a flash bang training attendance sheet.

(Ex. 6, for copy of emails along with course completion form and alleged

flash bang manual used during the alleged training.) Again, Defendant

Branham became S.W.A.T Commander in June 2007. From July 2007

through July 2010 S.W.A.T. had no documented training under Branham’s

command and flash bangs were used like toys. Coincidently, Defendant

Branham was relieved as S.W.A.T. Commander two days before this

investigation was officially closed. (See Ex. 7.)


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49.



officers, by failing to properly discipline Defendants who were known to

deploy flash bang grenades in a manner that violated the Fourth Amendment

rights of my clients and other Georgia citizens. This conduct shows

deliberate indifference.

50.



team officers, by failing to properly investigate excessive force incidents that

involved the use of flash bang grenades by Defendants. This conduct shows

deliberate indifference.

51.



team officers, by failing to establish and assure a bona fide and meaningful

departmental policy (written directive) in accordance with Clayton County

Police Departments own certification standards regarding the use of flash

bang grenades. This conduct shows deliberate indifference.


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52.



officers, by failing to discipline officers using excessive force and by

covering up their misconduct thereby encouraging the use of excessive force

by officers in its Police Department. This conduct shows deliberate

indifference.

53.



team officers, by failing to adequately train and supervise its officers,

including defendants, in the use of flash bang grenades. And also by

violating its own policy and procedure by failing to document proficiency

scores related to each officer that deployed flash bang grenades. There is

zero independent evidence that Defendants (and over 95% of S.W.A.T.

members) received any, or adequate, training on flash bang grenade

use. This conduct encouraged the reckless and deadly use of flash bang

grenades in the homes of, and against, U.S. citizens who are Georgia

residents.


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54.

Defendant Branham is also liable for the injuries suffered by Ms.

Dukes because despite having actual and constructive knowledge of a

pattern of violations regarding the use of flash bang grenades, Defendant

Branham instituted a custom of deliberately failing to investigate and

document use-of-force incidents—documentation demonstrates incidents

where Clayton County S.W.A.T. injured Georgia citizens with flash bang

grenades but there are absolutely no use- of-force reports written or

submitted regarding said incidents in accordance with Policy. This failure to

appropriately document known use of force incidents shows a deliberate

indifference to established policies that are deigned to protect citizens from

gratuitous use of force.

55.

Defendant Branham is liable for the injuries suffered by Ms. Dukes

because despite having actual and constructive knowledge of a pattern of

violations regarding the use of flash bang grenades, Defendants Branham

instituted, and ratified, a custom of failing to require specific flash bang in-

service training in accordance with policy guidelines—documentation,

information, and belief demonstrates that various S.W.A.T. team officers

injured Georgia citizens with flash bangs but said officers were never


30

required to undergo in-service training to refine their relevant skills.

Defendant Branham failures are especially egregious since he knows the

danger that flash bang grenades pose if one of these devices detonates on a

human body. (See Ex. 3, for copy of a report demonstrating fear of human

contact with a flash bang that failed to detonate. Significantly, Defendant

Branham was the reporting officer of this report [see lower left hand corner

of the report].)

56.

Defendant Branham is liable for the injuries suffered by Ms. Dukes

because Defendant Branham admits that he ordered Defendants Deaton,

Bennett, and John Doe to intentionally (or blindly) throw the flash bang

grenade through Ms. Dukes bedroom window. Not only is this evidenced by

his own admission, but it is also evidenced by Defendant Branham ordering,

participating in, and ratifying a pattern and practice of executing brake and

rakes on bedroom windows and then blindly or intentionally throwing flash

bang grenades through those windows regardless of whether human beings

were near or at the targeted area of the flash bang grenades, prior to the

subject incident. Also, it is irrefutable that Defendant Braham gave

Defendants unbridled discretion to deploy flash bangs “as determined as

needed.” That fact coupled with Defendant Branham failure to adequately


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train on the use of flash bang grenades, or document or discipline egregious

use of flash bang grenades, ratified, encouraged, and authorized the

deployment of a flash bang grenade through a bedroom window at 5:30 a.m.

onto a bed that was approximately three feet from that window, while Ms.

Dukes was asleep on that bed. This conduct along with other specified

conduct throughout this Count demonstrates that a causal connection exist

between Defendant Branham’s acts and omissions and Ms. Dukes injuries,

to the degree that the assertion, “Defendant Branham’s conduct proximately

caused the severe injuries suffered by Ms. Dukes” is more than plausible to

state a claim.

COUNT THREE

ASSAULT AND BATTERY (Against Defendants Bennett, Deaton, and John Doe)

57.

Ms. Dukes now fully incorporates paragraphs, 11, 25-30, as if each

were set forth verbatim herein, and any other paragraph this Court deems

applicable.

58.

Defendant Bennett assaulted Ms. Dukes by intentionally, willfully, and

maliciously throwing a flash bang grenade onto her body while she lay

asleep in bed at approximately 5:30 a.m. in the morning. This use of force


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was gratuitous, sick, and excessive, as absolutely unnecessary to effectuate

the execution of a search warrant under the facts of this case. A rationale

jury could find that Defendants acted intentionally and maliciously given the

fact that Defendants Deaton, Bennett, and John Doe, claim they are trained

to look before throwing flash bang grenades. So if Defendants looked before

throwing, then, they would have seen a bed approximately three feet from

the window. If that happened, then, Defendants intentionally threw the flash

bang grenade onto the bed (Ms. Dukes). Furthermore, Defendants’ tactical

plan says there was real time surveillance, with undercover officers, so a

rational jury could find that Defendants knew Ms. Dukes was present in the

subject apartment and therefore likely to be asleep in the bedroom which the

flash bang was thrown into.

59.

Defendant Deaton assaulted Ms. Dukes by intentionally, willfully, and

maliciously throwing a flash bang grenade onto her body while she lay



the execution of a search warrant under the fact of this case.


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60.

Defendant John Doe assaulted Ms. Dukes by intentionally, willfully,

and maliciously throwing a flash bang grenade onto her body while she lay



the execution of a search warrant under the fact of this case.

COUNT SIX

DAMAGES (Against All Defendants)

Because of Defendants unconstitutional conduct caused severe injury

to Ms. Dukes, she is entitled to all compensatory, special and general

damages permitted under controlling law.

COUNT SEVEN

PUNITIVE DAMAGES (Against All Defendants)

Because of Defendants unconstitutional conduct that caused severe

injury to Ms. Dukes demonstrates an egregious deliberate indifference

toward Ms. Dukes, Ms. Dukes is entitled to punitive damages, to be

determined by a jury.


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COUNT EIGHT

ATTORNEY FEES (Against All Defendants)

Due to Defendant’s bad faith and stubbornly litigious conduct, Ms.

Dukes asks this Court to grant attorney fees and also should Ms. Dukes

prevail on any of her claims, she asks this Court to award attorney fees as a

matter of law.

WHEREFORE, Ms. Dukes prays the following relief:

1. Ms. Dukes seeks an amount including all damages from the

Defendants;

2. That Ms. Dukes have a trial by jury on all matters not

adjudicated by this Court;

3. That this Court enter judgment in favor of Ms. Dukes in an

amount allowable by law that compensates Ms. Dukes for all

prayed for damages, including special and general damages,

together with prejudgment interest;

4. That Ms. Dukes recover reasonable attorneys fees and costs in

an amount to be determined by this Court;

5. That Ms. Dukes be awarded exemplary damages based on the

enlightened consciousness of the jury for the willful and wanton

acts of the all Defendants; and


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6. That Ms. Dukes recover such other, further, and different relief

this Court deems appropriate under the circumstances.

Respectfully submitted this 16th day of August 2012

s/MARIO WILLIAMS

Mario Williams

GA No. 235254

Williams Oinonen LLC

The Historic Grant Building, Suite 200

44 Broad Street, NW

Atlanta, Georgia 30303

Telephone (404) 654.0288

Facsimile (404) 592.6225

[email protected]

Counsel for Ms. Dukes


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CERTIFICATE OF SERVICE

I hereby certify that I have this day electronically submitted the

foregoing Plaintiff’s First Amended Complaint to the Clerk of Court using

the CM/ECF system which will automatically send electronic mail

notification of such filing to counsel of record who are CM/ECF

participants:

Brian Dempsey, Esq

100 Galleria Parkway

Suite 1600

Atlanta, GA 30339-5948

Respectfully submitted this 16th day of August 2012,

s/ MARIO WILLIAMS

Mario Williams

GA Bar No. 234254

WILLIAMS OINONEN, LLC

The Grant Building

44 Broad Street, NW

Suite 200

Atlanta, GA 30303

Tel: 404-654-0288

Fax: 404-592-6225


Documents

First Amended Complaint -T. Dukes