Metropolitan News-Enterprise

Wednesday, June 13, 2012

Page 1

Ninth Circuit Revives Part of Suit Over DEA Wrong-House Raid

By KENNETH OFGANG, Staff Writer

The Ninth U.S. Circuit Court of Appeals yesterday reinstated part of a lawsuit against the federal government by a family whose house was raided by the Drug Enforcement Administration as a result of an incorrectly recorded license plate number.

A U.S. district judge had granted summary judgment in the governments favor, rejecting claims by the family of Thomas Avina that the agents had used excessive force in executing a search warrant. The agents obtained the warrant in order to look for evidence against alleged drug trafficker Luis Alvarez, but discovered after the raid that a vehicle registered at the residence belonged to Avina and not to Alvarez.

The Ninth Circuit panel, however, said there was sufficient evidence for the case to go to trial on claims that the agents committed assault and battery, along with intentional infliction of emotional distress, against the Avina daughters, ages 11 and 14. But it said there was no evidence from which a jury could conclude that the agents acted unreasonably in their dealings with the parents, based on the facts known to them at the time.

Federal Tort Claims Act

The Avinas sued under the Federal Tort Claims Act, which generally renders the government liable for the actions of its agents, to the same extent that a private person would be liable under the applicable state law. They claimed that the agents acted unreasonably after entering the mobilehome the family lives in in Seeley, 7.5 miles west of El Centro.

The plaintiffs testified that the agents ordered them to lie on the ground, forcefully pushed Thomas Avina down after he refused, handcuffed the entire family, and pointed a gun at the head of the 11-year-old as if he was going to shoot her.

The government moved for summary judgment, which was granted by U.S. District Judge Thomas Whalen of the Southern District of California.

But Judge Harry Pregerson, writing for the Court of Appeals, said there are triable issues of fact as to whether it was reasonable to point a gun at a handcuffed child, and whether the two girls should have been forced to lie on the ground in handcuffs, given the limited threat that they posed.

Ruling Distinguished

He distinguished Muehler v. Mena, a U.S. Supreme Court ruling that upheld the extended handcuffing of an adult during a search by Simi Valley police. Pregerson said that precedent could not be extended to children.

As to the adults, however, Pregerson agreed with the district judge that the agents were entitled to take measures to protect themselves from an inherently dangerous situationraiding what they believed to be the home of a drug trafficker. Handcuffing the adult members of the household, and forcing Thomas Avina to the ground when they first entered the home and didnt know who he was and he wouldnt immediately cooperate, was reasonable as a matter of law, the judge said.

The case is Avina v. United States, 11-702.

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