Family Can Sue for Wrongful Raid Under Tort Claims Act - Injury & Tort Law - U.S. Ninth Circuit
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Family Can Sue for Wrongful Raid Under Tort Claims Act

On a January morning in 2007, the Avina family was asleep in a mobile home when Drug Enforcement Administration (DEA) agents approached the front door, armed with a search warrant. The agents banged loudly on the door and yelled “police.” They waited briefly, and then used a battering ram to break through the front door. The agents entered the Avinas’ home with their guns drawn.

The agents were actually looking for suspected drug trafficker Luis Alvarez, but they accidentally got a warrant for the Avina residence due to a note-taking error.

In 2008, Thomas and Rosalie Avina and their two minor daughters, B.F.A. and B.S.A., filed a Federal Tort Claims Act claim against the government, alleging that DEA agents committed the torts of assault and battery and intentional infliction of emotional distress (IIED) when they executed the search warrant.

The district court granted summary judgment in favor of the feds, holding that DEA agents used reasonable force when they executed the search warrant. This week, the Ninth Circuit Court of Appeals reinstated the Avinas’ case.

While the Ninth Circuit agreed with the district court that there was no genuine issue of material fact regarding whether the DEA agents’ use of force against the parents was reasonable, it found that there was a genuine issue of material fact regarding whether DEA Agents used reasonable force against 11-year-old B.S.A. and 14-year-old B.F.A.

The accounts of the agents’ interactions with the daughters are pretty similar. Agents entered both daughters’ rooms with guns drawn, yelled some variation of “get down on the f**king ground” at the girls, and handcuffed them. The girls remained handcuffed for approximately 30 minutes.

The Ninth Circuit Court of Appeals concluded that pointing guns and dropping f-bombs in front of tweens crosses into the genuine issue of material fact area.

The appellate court, relying on the Supreme Court’s 2005 Muehler v. Mena decision, reinstated the assault and battery claims, noting that a jury could find that the agents’ decision to force the two girls to lie face down on the floor with their hands cuffed behind their backs was unreasonable.

Similarly, the court ruled that rational trier of fact could find that agents’ engaged in “extreme or outrageous” conduct supporting an IIED claim when they pointed their guns at an 11-year-old’s head “like they were going to shoot her”, forced both girls to lie face down on the floor with their hands cuffed behind their backs, left the girls in handcuffs for half an hour, and yelled at the girls to “get down on the f**king ground.”

Now that the Ninth Circuit Court of Appeals has reinstated the case, we’re guessing that the DEA will negotiate a settlement with the Avinas on the girls’ assault and battery and IIED claims. While a jury may be able to excuse the agents’ mistakes toward the parents, we doubt they would forgive federal agents for pointing guns at an 11-year-old.

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