Milan v EvansvilleD 84 Defendants Reply

8/11/2019 Milan v EvansvilleD 84 Defendants Reply

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

LOUISE MILAN, )Plaintiff, )

)

v. ) Cause No. 3:13-cv-00001-WTL-WGH

)CITY OF EVANSVILLE, et al., )

Defendants. )

DEFENDANTS REPLY TO PLAINTIFFS RESPONSE IN OPPOSITION TO

DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Come now the Defendants, by counsel, and file their Reply to Plaintiffs Response in

Opposition to Defendants Motion for Summary Judgment.

I.

Summary of Argument

Plaintiff opines how she believes the EPD should have acted and relies on facts after the

incident relating to a different search warrant for a different party at a different location under different

circumstances. Despite her argument that Defendants should have acted differently, Plaintiff presented

no law enforcement expert affidavit suggesting that Defendants actions were contrary to police

procedure or inconsistent with sound investigative practices. Plaintiff presented no technology expert

to testify that Defendants understanding or action relative to the technology issues was inaccurate or

improper. Plaintiff simply claims, in hindsight, that Defendants should not have considered the

internet posts as credible threats, should not have been proactive in their investigation and should have

put officer safety at risk when executing the search warrant. We live in a world where violent

criminals act on their threats and no law requires police officers to forego safety measures where

Case 3:13-cv-00001-WTL-WGH Document 84 Filed 09/29/14 Page 1 of 15 PageID #: 1000


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circumstances put them in harms way. A violent criminal exploited Plaintiffs unsecured internet

connection which resulted in Defendants actions that were objectively reasonable under the

circumstances.

II.

Plaintiffs Factual Statements Without Evidentiary Support

Plaintiffs Response to Defendants Statement of Material Facts Not in Dispute, No. 59 states,

While at the scene, Det. Evrard pulled out his smart phone and was able to establish thatthere was an open internet connection at Louises home in less than 30 seconds.

[Plaintiffs Exhibit 17, Evrard Dep. At pgs. 46-47; Plaintiffs Exhibit 3, Louise Milan

Dep. At pg. 31].

(Response, p. 9). This false assertion is repeated throughout the Response and forms a basis for her

argument. (See Response, pp. 32, 36). Det. Evrard testified at p. 46:

Q. Did you tell Stephanie or Louise that you knew it wasnt them making the threats

or anything like that?

A. No. I remember telling them that I had to go back to the computer and see who

has been logged in.

Q. Did you hold up your smart phone, you know, check to see if that was unsecured,

Ms. Milans router?

A. While I was there well, you cant tell if its hers unsecured, but you can tell if

theres there was an unsecured router in the area.

Det. Evrard testified that one could not tell whether the unsecured network originated from Plaintiffs

residence (the Residence) or another residence. That is precisely why Defendants had to search the

electronic devices in the Residence to determine, in part, if she had an unsecured internet connection

and whether a device within the Residence was used to make the internet threats. Thus, Plaintiffs

assertion that one could stand outside the Residence and determine whether the unsecured network

originated from the Residence is contrary to the cited deposition testimony and is not supported by the

evidence.



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III.

Argument

1. Plaintiff concedes the objectively reasonable standard but ignores it.

Plaintiff concedes that the Fourth Amendment inquiry is one of objective reasonableness under

the circumstances and that only the facts and circumstances known to the Defendants at the time that

force is applied (and not with 20/20 hindsight) is relevant. (Response, p. 27, citations omitted). Yet,

Plaintiffs argument is focused on what she believes Defendants should have done and actions

Defendants took after the execution of the search warrant on the Residence.

Investigative effort that should have been done before the raid. (Response, p. 1).

[Defendants] did not do enough investigation. (Response, p. 4).

He did no further investigation. (Response, p. 14).

He elected to do no further investigation. (Response, p. 15).

[Defendants] could have elected not to use SWAT and/or not to use flash bang

grenades. (Response, p. 6).

Det. Brown did not pursue additional investigation. (Response, p. 32).

EPDs investigation was incredibly deficient, hurried and turned a blind eye to several

important facts.

The additional investigative work after the execution of the search warrant on the

Residence which led to the arrest of Derrick Murray. (Response, pp. 36-39).

What Defendants should have done, how they should have conducted their investigation, what facts

they should have viewed as important or less important and what investigatory actions they took after

the search of the Residence are irrelevant. Only the facts known to Defendants at the time of executing

the search warrant on the Residence are relevant in determining whether the use of force was



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objectively reasonable. Plaintiffs attempt to divert the inquiry is contrary to the standard of review.

2. Plaintiff has waived any allegation of a defective search warrant.

In her Third Amended Complaint, Plaintiff alleges a violation of her constitutional rights

resulting from the execution of the search warrant and raid on [Plaintiffs] home. (Response, 24;

see also 27 an unreasonable search and seizure . . . by using unreasonable and/or excessive force . . .

and falsely arresting and/or wrongfully detaining [Plaintiff]). Plaintiff now asserts that,

Defendants violated the protections of the 4th

Amendment with the defective searchwarrant, investigative malfeasance, using the SWAT team to raid and smash their way

into Milans home (without adequate warning), the use of flashbang grenades during the

raid and how the flashbang grenades were deployed . . . .

(Response, p. 27). The new claim fist asserted in the Response as to an alleged defective search

warrant was not properly pled and is waived for failure to present a cogent argument.

Other than the single reference to the defective search warrant, Plaintiff presents no facts,

evidentiary designation, argument or case law to explain how the search warrant was defective or

violated her constitutional rights. If the search or seizure was effected pursuant to a warrant, the

defendant bears the burden of proving its illegality. United States v. Longmire, 761 F.2d 411, 417

(7th Cir. 1985). The Seventh Circuit has made clear that probable cause affidavits are to be read as a

whole in a realistic and common sense manner, United States v. Quintanilla, 218 F.3d 674, 677 (7th

Cir. 2000), and that doubtful cases should be resolved in favor of upholding the warrant.

Quintanilla, 218 F.3d at 677. The lack of a cogent argument relative to the defective search warrant

fails to preclude summary judgment.

3. The Graham factors.

Plaintiff argues that the execution of the search warrant on the Residence was an unreasonable

search that involved excessive force. In addressing the factors set forth in Graham v. Connor, 490

U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), Plaintiff asserts that to properly evaluate



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these factors an analysis must be performed of what were the EPDs goals, what they knew, should

have known or chose to ignore, the completeness of their investigation (or lack thereof) . . . .

(Response, pp. 28-29). The measure of reasonableness is from the perspective of a reasonable officer

on the scene based on the facts then known. Graham, 490 U.S. at 396. Thus, EPDs goals, what

Defendants should have known, the completeness of the investigation and post-search investigatory

actions relative to Derrick Murray are irrelevant. The Court only considers the facts known to

Defendants at the time of executing the search warrant.

A. The severity of the crime at issue.

The only offense committed by anyone at this point were threats made on the internet

internet threats cannot be considered violent and most certainly were not completed with a weapon.

(Response, p. 21). Plaintiff also suggests that the internet threats cannot be considered a crime because

they were not credible. (Response, p. 29).1 Courts have recognized that internet threats can express

the intent to commit violent acts. In re Grand Jury Subpoena, 846 F. Supp.2d 1, 5 (D.D.C. 2012).

The First Amendment limits the authority of the federal government to

criminalize speech, and in this context would only allow prosecution of

Mr. X if his tweet constituted a true threat. In order for a threat to betrue, its speaker must mean to communicate a serious expression of

an intent to commit an act of unlawful violence to a particular individual.

. . .

Wanting to do something is often, though not always, a predicate to

actually doing something, and while history and literature may be full of

reluctant killers, see, e.g.,William Shakespeare, Hamlet,passim; Crimesand Misdemeanors (Orion 1989), the Court is aware that many

murderous members of our society do not share such trepidation. Use of

the phrase I want to may signify an inchoate wish, or may indicate agoal toward which an individual is actively working.

1Despite her argument citing post-incident facts regarding Derrick Murray, Plaintiff ignores the fact

that the threats were sufficiently credible to obtain his criminal conviction and incarceration.



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[T]he government has a strong public interest in investigating that threat,

however outlandish.

Id. at 7-8.

Plaintiff cites no evidence, case law or expert testimony to support her conclusory statement

that internet threats cannot be considered violent or credible. The threats in question referenced a

desire and intent to use weapons or explosives on police officers and their families and disclosed the

general location of Chief Bolins residence and gave a specific date. The United States Federal Bureau

of Investigation found the internet threats sufficiently credible to contact Chief Bolin and advise him of

the same. (Bolin Deposition., attached as Exhibit E to Defendants Motion, p. 27, lines 17-25; p. 28,

lines 1-20). A local news reporter, a local citizen and a law enforcement officer also thought the

internet threats were sufficiently credible to contact Chief Bolin. (Bolin Depo., p. 28, lines 18-20; p.

30, lines 7-13). If one is willing to violate criminal laws in posting internet threats, it is reasonable for

law enforcement to believe that person has the desire to carry out the violent threats. In such case, it is

law enforcements obligation to initiate and advance a criminal investigation. Thus, it was objectively

reasonable for the Defendants to consider the internet posts as credible threats and to react accordingly.

Plaintiff next argues that Defendants reacted too quickly because the threats referenced a date

of July 4th

and the EPD had at least thirteen (13) days to carry out the complete investigation.

(Response, p. 29). Apparently, Plaintiff argues that Defendants reacted too quickly in responding to

the death threats and in locating and arresting the criminal in question. Because the internet posts were

a true threat, Defendants reacted appropriately to locate and arrest the responsible individual(s). If

Defendants had delayed their investigation and the criminal had acted before July 4th, innocent people

could have been killed and Defendants would have been sued for not acting quickly. No objectively

reasonable officer would have believed that Defendants acted unreasonably in quickly investigating the



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threats. Plaintiff presents no expert testimony that Defendants should have acted differently. Thus, the

severity of the crime supports Defendants actions as being objectively reasonable.

B. Whether the suspect was an immediate threat to the safety of officers or others.

Plaintiff argues that because Defendants were executing a search warrant, there could be no

suspect for the internet threats. (Response, p. 29). The purpose of the investigation was to identify,

locate and arrest the individual(s) responsible for the criminal threats. Thus, there was a suspect

underlying the investigation and the execution of the search warrant. Defendants determined the IP

address through which the threats were posted was at the Residence. Defendants associated three

known criminals with the Residence or the area around the Residence who had gang, violence and gun

histories. Plaintiff does not dispute the violent, criminal histories of Marc Milan, Anthony Milan, Sr.,

and Anthony Milan, Jr. Defendants record management system noted the Residence as a known

location for one of the potential suspects, Anthony Milan, Sr. Any one of those suspects could have

been residing in the Residence or visiting the Residence such that they had access to Plaintiffs internet

connection.

Based on the information known, it was reasonable for Defendants to associate these violent,

criminals with the Residence and to consider the same when executing the search warrant. Plaintiff

presented no expert testimony that it was unreasonable or an improper law enforcement investigation

to associate such criminals with the Residence. Given the information known, it was objectively

reasonable for Defendants to suspect that there were violent criminals associated with the Residence

who could pose an immediate threat to Defendants safety when executing the search warrant.2

2Despite her reliance on post-incident facts, Plaintiff omits Anthony Milan, Sr.s admission to Chief

Bolin that he was living on and off at the Residence at the time the search warrant was executed and

Stephanie Milans admission that Anthony Milan, Jr., stayed at the Residence on occasion. (BillyBolin, Depo., p. 40, lines 22-25; p. 41, lines 1-21); Stephanie Milan Deposition attached as Exhibit B

to Defendants Motion, p. 8, lines 12-24).



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C. Active Resistance or Attempting to Flee.

Plaintiff argues that the last Graham factor is not relevant because there was no suspect

actively attempting to evade or resist arrest and no one interfering with an officers duties. The context

of each case is different and the application of the Graham factors is likewise dependent upon the

factual circumstance. In the present case, Plaintiff does not dispute that there was some person hiding

behind an internet pseudo name who was making criminal threats to kill police officers and their

families. This criminal(s) was attempting to evade law enforcement identification by using an internet

pseudo name. Thus, the individual making the posts was in fact attempting to avoid police interaction

and arrest even though he/she was doing so through the internet and not in the actual presence of a law

enforcement officer. In applying this Graham factor to the facts and circumstances known to the

Defendants at the time of the incident, there was an unknown criminal who was actively resisting

identifying himself/herself to and interaction with Defendants so as to avoid arrest.

4. Use of the SWAT team and distraction devices.

Plaintiff argues that the facts known to Defendants did not justify utilizing SWAT and an

officer should have walked up to the front door of the Residence and inquired of the residents.

Plaintiff presented no expert testimony that the use of SWAT was improper or contrary to established

policy or practice. Defendants have wives, parents, children and friends and they are not obligated to

put their lives at risk where information suggests that someone willing to harm them may be within the

Residence. This is why Courts are not disposed to question the safety measures that police employ

when entering a house to serve a search warrant. United States v. Slaight, 620 F.3d 816, 820 (7th Cir.

2010). As a result, courts give considerable leeway to law enforcement officers assessments about

the appropriate use of force in dangerous situations. Baird v. Renbarger, 576 F.3d 340, 344 (7th

Cir.2009); Abbott v. Sangamon County, Illinois, 705 F.3d 706, 724-725 (7th Cir. 2013).



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Plaintiff claims that a resident of the Residence may not have been the person actually using the

IP address. (Response, p. 31). This is true. Defendants knowledge of an open internet connection in

the area around the Residence, however, did not change the fact that Defendants had to gain entrance

to the Residence to access the electronic devices therein and to further their investigation as to who

made the threats. In executing the search warrant, Defendants would find evidence 1) whether an

electronic device in the Residence was used to make the threatening posts; 2) whether the router in the

Residence was secured or unsecured; 3) if the router was unsecured, someone outside the Residence

could have accessed the internet connection and made the threatening posts; 4) if the router within the

Residence was secured, someone in or who had been in the Residence could have made the threatening

posts; 5) of the routers specific Mac address which would show up on the precise electronic device(s)

that was used to make the threatening posts. Thus, obtaining evidence from the Residence required a

search warrant and given the known risks, the SWAT team was deployed to ensure officer safety in

executing the search warrant.

Plaintiff states, Louises router would not and did not provide the EPD any information that

they did not already have. (Response, pp. 32-33). This is false. In fact, the search warrant provided

critical evidence 1) that Plaintiff and her daughter and no one else in the Residence made the threats; 2)

that no electronic device in the Residence was used to make the threats; 3) that the router was

unsecured and someone outside the Residence accessed Plaintiffs internet connection to make the

threats; and 4) of the specific Mac address for Plaintiffs router which would show up on the electronic

device used to make the threats.3

Plaintiff argues that Detective Brown drove near the Residence and was able to discern that an

unsecured internet connection in the area but he did not bother to get out of his car to further

3With this information and further investigation, the Mac address from Plaintiffs router was found on

Derrick Murrays cell phone which led to his arrest and conviction for the internet threats.



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investigate the open internet connection . . . . (Response, p. 32). Plaintiff never states what Detective

Brown could have done if he had exited his car. In fact, Detective Brown continued with the

investigation by reporting the information to the SWAT team. Plaintiff presented no technology or law

enforcement expert to suggest what Detective Brown did was deficient or that he should have done

something else. Plaintiff implies that he should have walked to the front door of the Residence,

knocked and inquired if Plaintiff had an unsecured internet connection. Detective Brown understood

the threats and the potential for harm and he was not obligated to put his life at risk.

A. Use of the distraction devices.

Given the violent threats and their reference to weapons and explosives, potential suspects

associated with the Residence, the suspects prior criminal histories with gangs, guns, and violence,

and the legitimate concern for officer safety, Defendants made the decision to use the SWAT Team

and to deploy distraction devices to give them a tactical advantage. This use of distraction devices in

the execution of a high risk search warrant is consistent with established law. Molina Ex Rel.

Molina v. Cooper, 325 F.3d 963 (7th Cir. 2003),Estate of Escobedo v. Bender, 600 F.3d 770 (7th Cir.

2010)(Escobedo I) andEstate of Escobedo v. Martin, 702 F.3d 388 (7th Cir. 2012) (Escobedo II).

Plaintiff relies on hindsight to claim that there was no imminent threat. (Response, p. 36). Plaintiff

does not allege that the use of the distraction devices violated police policy and she presents no expert

testimony that the use of the distraction devices under the facts known to Defendants was improper or

contrary to law.

B. Deployment of distraction devices.

Plaintiff also claims a violation of the Fourth Amendment based on the deployment of

distraction devices where the knock and announce of 4 to 6 seconds was insufficient because

adequate time was not provided for anyone inside to respond. (Response, footnote 4, p. 35). Despite



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her claim that this miniscule time period is a violation of the Fourth Amendment, Plaintiff does not

cite legal authority and relegates it to a footnote in her Response. Id. Plaintiff also claims that

Defendants did not look for innocent bystanders. The front glass storm door was locked but

Defendants could clearly see through the glass door into the entry. After the knock and announce, the

glass door was breached and a distraction device was placed, thrown, delivered, tossed, etc., into the

front entry. The second distraction device was put on a port and placed through the front porch

window into the living room so that it would deploy upward toward the ceiling.

Plaintiff admits that neither she nor her daughter were in the rooms where the distraction

devices were deployed. Plaintiff was in the second story bedroom at the time the distraction devices

were deployed on the first floor. Plaintiff likewise concedes that neither she nor her daughter was

injured by the distraction devices. The only damage Plaintiff claims is a burn mark on the carpet.

Thus, the distraction devices were not deployed in a manner to cause injury to Plaintiff but did in fact

give Defendants the tactical advantage they sought.

Plaintiff presents no cogent argument or legal authority that the manner in which the distraction

devices were deployed was contrary to law. Plaintiff presented no expert testimony that the

deployment of the distraction devices was contrary to police policy, training or other use of force

principles. Plaintiff simply opines that Defendants should have acted differently. The Supreme Court

has recognized that there is no knock and announce requirement where the circumstances exist that

would render such an entry dangerous. Richards v. Wisconsin, 117 S.Ct. 1416, 520 U.S. 385, 394

(1997). In order to justify a no-knock entry, the police must have a reasonable suspicion that

knocking and announcing their presence, under the particular circumstances, would be dangerous or

futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the

destruction of evidence. Id. This standardas opposed to a probable-cause requirementstrikes the



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appropriate balance between the legitimate law enforcement concerns at issue in the execution of

search warrants and the individual privacy interests affected by no-knock entries. Id. Thus, the

deployment of the distraction devices did not violate Plaintiffs constitutional right.

5. Qualified Immunity.

Plaintiffs qualified immunity argument is limited to her constitutional right to be free from

unreasonable search and seizure and excessive force by this use of flash bang devices during the

execution of the search warrant.4 (Response, p. 39). She argues that no reasonable officer could

believe the use of or manner in deploying the distraction devices was acceptable because there was no

identified threat. (Response, p. 43). Plaintiff simply ignores the violent nature of the threats and

other information known to Defendants and claims that there was no real threat to the officers.

(Response, p. 42).

As to the use of distraction devices, Plaintiff relies on Estate of Escobedo v. Bender, 600 F.3d

770, 784-786 (7th

Cir. 2010). Molina, Escobedo I, and Escobedo II hold that the use of distraction

devices is reasonable during the execution of a high risk search warrant, where potentially dangerous

suspects may be present, or where officer safety is a legitimate concern. Escobedo IIalso recognized

that police are not required to place themselves in a precarious position, [which] forces them to

surrender the very tactical advantages namely, surprise and temporarily disabling the dangerous

individual they hope to gain by deploying a flashbang. Id. at 408. Defendants, through their

ongoing investigation, had information that execution of the search warrant did involve substantial risk

of harm and use of SWAT team expertise and distraction devices was needed to maintain officer

safety. Under the information known to Defendants and the 7th

Circuit case law, no reasonable officer

4Plaintiff made no qualified immunity argument relative to the alleged defective search warrant,

investigative malfeasance, or to her alleged arrest or detainment and has waived any such argument.



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would have believed that Defendants conduct was unlawful in the situation they confronted. Saucier

v. Katz, 533 U.S. 194, 202 (2001).

Plaintiff then claims that qualified immunity does not extend to the method of deploying the

distraction devices. (Response, p. 43-44). This argument is but an afterthought and lacks citation to

establish any right was clearly established. As noted above, the Supreme Court inRichardsheld that

there is no requirement to knock and announce when police have a reasonable suspicion that to do so

would be dangerous. Given the threats stated aim to kill officers, it would have put officer safety at

risk to knock and announce for an extended period of time. Defendants did use the distraction devices

so that no person in the Residence was injured by the devices. Given the reference in the internet posts

to weapons and explosives, Defendants did not carry a fire extinguisher when they executed the search

warrant as it would have been dangerous. SWAT Commander Lieutenant Molinet stayed by the

SWAT truck, which contained a fire extinguisher and he was only a short distance away from the

Residence, and was available to quickly access the fire extinguisher if necessary. Dave Molinet Dep.,

attached as Exhibit D to Defendants Motion, p. 64, lines 7-14; p. 69, lines 24-25; p. 70, line1; Pugh

Affidavit, attached as Exhibit I to Defendants Motion, Helmet Cam Video, Exhibit 7).

No reasonable officer would believe that the method of deploying the distraction devices under

the facts known was unreasonable and unconstitutional. Even if the Court would find that Defendants

acted in an unconstitutional manner, the individual Defendants are entitled to qualified immunity.

6. Monellliability.

As set forth above, there was no constitutional violation by any Defendant. Therefore,

PlaintiffsMonellclaim relating to Chief Bolin as final policy maker fails as a matter of law.



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IV.

Conclusion

What Plaintiff experienced is unfortunate and unfair. But criminals exploit innocent victims

and Defendants obligations are to locate, arrest and have those criminals punished. In this case, a

potentially violent criminal exploited Plaintiffs unsecured internet connection to make death threats

against police officers and their families. Defendants undertook a necessary, efficient and legal

investigation, while ensuring officer safety, which led to the arrest, conviction and incarceration of the

criminal. While Defendants understand the traumatic experience that Plaintiff sustained, the law does

not impose liability on Defendants for their reasonable investigatory actions. Plaintiffs claim for

relief must be directed against the convicted criminal.

Respectfully submitted,

s/ Robert L. Burkart

Keith W. Vonderahe #21908-82

Robert L. Burkart #16664-82ZIEMER STAYMAN WEITZEL & SHOULDERS, LLP

20 N. W. First Street

P. O. Box 916Evansville, IN 47706

Tel. No. (812) 424-7575

Fax No. (812) 421-5089

E-mail: [email protected]@zsws.com

Attorneys for the Defendants.

mailto:[email protected]:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

I certify that on the 29th day of September, 2014, a copy of the foregoing Defendants Replyto Plaintiffs Response in Opposition to Defendants Motion for Summary Judgment was filed

electronically. Notice of this filing will be sent to the following parties by operation of the Courtselectronic filing system. Parties may access this filing through the Courts system.

Kyle F. Biesecker

[email protected]

Roy W. Harris, Jr.

[email protected]

s/ Robert L. BurkartRobert L. Burkart

h:\evansville, city of\epd\milan\brief in reply.docx

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

Documents

Milan v EvansvilleD 84 Defendants Reply