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Officers must defend illegal conduct during drug search

Acting on an anonymous tip and an alleged positive dog sniff at the apartment front door, officers obtained a warrant to search a Southgate apartment.  Wearing masks, the officers knocked the door down, forced the Marion and Joselito Binay family to the floor at gunpoint, handcuffed them, and interrogated them for an hour.  The searched the apartment but found nothing and the drug-sniffing dog also had not "hits."  Although the officers' prepared plan did not anticipate firearms and the family was cooperative and offered no resistance, the officers apparently violated Fourth Amendment and 42 USC 1983 law by pointing guns at non-threatening, unarmed detainees and keeping them handcuffed and under interrogation despite a search that turned up no evidence of contraband.  The Binay family filed a lawsuit alleging Civil Rights violations, false arrest and assault and battery.

The trial court dismissed some claims, but refused to dismiss the claims against two individual officers who allegedly misused firearms and handcuffed interrogation techniques.  On review, the Sixth Circuit unanimously upheld the judge's refusal to grant the individual defendants immunity.  It recited the well-established law holding that a governmental actor performing a discretionary duty is shielded from liability if his conduct does not violate clearly established law.    It also noted, however, that to be "clearly established" law, the instant circumstances don't have to be identical to previous decisions:  the officer need only encounter a situation that is "fundamentally similar" or "materially similar" to established law, such that the officer has "fair warning" of his impending breach of a detainee's civil rights.

In the instant setting, the Binays had no criminal record and offered no resistance.  The officers did not anticipate encountering firearms and rather than hostility, they encountered only cooperation.  They found no evidence of contraband.  Under these circumstances, if the Binays can prove the facts alleged (i.e., that the officers trashed the apartment; that they threatened the family with loaded weapons, even after the family was handcuffed; that the interrogation was continued for an hour--even after the fruitless search was called off), they have proven a breach of civil rights which was clearly established under existing law.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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