Tenth Circuit to Decide Appeal on Governmental Immunity and Excessive Use of Force in Execution of Search Warrant Case Involving Archaeological Artifacts.

The Estate of James D. Redd, M.D. has filed an appeal to the Tenth Circuit Court of Appeals from U.S. District Court Judge Ted Stewart’s order of March 15, 2016 granting the United States government’s motion for summary judgment in the estate’s Federal Tort Claims Act (FTCA) action for wrongful death and intentional infliction of emotional distress based on alleged use of excessive force against arrestee in executing search and arrest warrants at the Redd’s home.

The federal tort claim results from a controversial sting operation involving Bureau of Land Management agents efforts to stem illegal trade in Native American and other archaeological artifacts.

The Appellant’s brief, 2016 WL 3344925 (C.A.10), in its statement of the case, described the facts relevant to the issues on appeal as follows (omitting references):

“ In October of 2006, the FBI and BLM began an investigation designated Operation Cerberus. Operation Cerberus was a joint FBI/BLM investigation into the looting of Native American artifacts on public land. The Operation culminated in the simultaneous search and arrest of 19 persons and 12 search warrant locations on June 10, 2009 in and around the area of Blanding, Utah.

Dr. James Redd (decedent) and his wife Jeanne Redd, were among those arrested, and their home was one of the locations at which search warrants were executed, during the June 10, 2009 Cerberus Raids. Dr. Redd had been a physician in Blanding for over thirty years, was well known and respected in his community, and was active in his church.  At the time of the raid, he was sixty years old.

The United States employed and paid an undercover informant, Ted Gardiner, a Native American artifact dealer and collector. Gardiner had mental health problems and substance abuse problems of which the Government agents were aware. During his course of employment, Gardiner paid approximately $335,0000.00 in Government supplied currency to purchase approximately 250 Native American Artifacts from various persons.  Gardiner offered large and inflated sums of money for artifacts to induce sales from individuals who were not predisposed to sell artifacts or otherwise engage in criminal activity.  Government Agents trained and directed Gardiner to raise the value of items he sold or purchased to a figure in excess of $1,000.00, in order to enhance the potential offense from a misdemeanor to a felony.  The Government paid Gardiner over $225,000.00 as salary for his work in the Cerberus Operation.   Based in whole, or in part on the work of Mr. Gardiner, numerous charges were made, and arrests effected, against at least 16 Blanding, Utah, residents.

The only allegation against Dr. James D. Redd was that he and his wife Jeanne Redd, illegally “received, concealed and retained” a “bird effigy pendant.” Gardiner alleged that Dr. Redd traded the bird effigy pendant with him for items that were lawful to possess. The alleged bird effigy pendant was never located or found. The Redd Family contended that the item never existed, but if it did exist and if it was the item which the Redd Family believed it to be, it was found on private land and was not illegal to possess, and did not otherwise violate the 1979 Archaeological Resources Protection Act (ARPA).”

The Redd Family alleged that the Government's use of Gardiner was improper:

“Defendant trained, directed, and encouraged Gardiner to raise the value he paid for the undercover purchases so Gardiner could use his undercover sales, swaps, and purchases to entrap ‘customers'; Artificially enhancing value of the artifacts also resulted in more serious criminal charges, enhancing misdemeanors to felonies, and thereby justifying the great expense of Cerberus; Defendant's agents relied solely on their informant to ascertain the value of the allegedly illegal artifacts; Gardiner was not a recognized expert in artifact valuation; Gardiner had developed a reputation in the artifacts market for overvaluing items in sales, ripping off purchasers, and consequently burning bridges with customers; As an informant, Gardiner was biased and incentivized to overvalue items, given the Defendant's and informant's preference to bring felony charges against targets of the undercover operation; Defendant additionally failed throughout the implementation of Cerberus to adequately distinguish between articles found on private land, or articles obtained prior to the Archaeologist Resources Protection Act, or articles that were from Native American civilizations outside the United States.”

The Redd Family alleged that the Government agents directed Gardiner to artificially raise the value of artifacts and then relied solely on his valuations in order to ensure a basis for a felony indictment. In addition, the Redd Family alleged that Government Agents deliberately falsified information in order to show probable cause in their warrant application. The allegations related to the involvement of Gardiner gave rise to various tort claims against the Government by the Redd Family.  The arrest of Dr. Redd had a profound effect on he and his family. As a result of the events of June 10, 2009, Dr. Redd committed suicide on June 11, 2009.

On June 19, 2009, another Cerberus Defendant, took his own life as well. Remorseful over his role in the death of two people and his complicity in the Cerberus Operation, Gardiner took his own life also.

The government in its Memorandum in Support of the United States' Motion to Dismiss,

2012 WL 7677370, stated:

“Distilled to its essence, Plaintiffs' argument is that the federal agents' decision to curb epidemic violations of the Archaeological Resources Protection Act, 16 U.S.C. § 470aa et. seq., as well as their execution of search and arrest warrants without first warning Plaintiffs of the impending raid, make the United States liable for the decedent's decision to commit suicide the day after the agents had left his home.”

REDD et al., Plaintiff, v. UNITED STATES OF AMERICA, Defendant., 2012 WL 7677370 (D.Utah)

Since both the Appellant and Appellee agreed that oral argument was unnecessary, the appeal will be decided on the written briefs. The decision of the Tenth Circuit is pending

For background on Operation Cerberus Action see L.A. Times reporter Joe Mozingo’s article of September 21, 2014, A STING IN THE DESERT.

Henn. Co. Dist. Ct. Judge Pushes Back Against Over Militarized Police Tactics

In a growing number of cases around the country courts and judges are starting to push back against civilian police departments' over their use of military tactics and equipment formerly associated with the battlefield and foreign wars.  Since 9/11 the United States has witnessed a prolific increase in the use of specialized weapons and tactical teams to the point where what was intended to be used in very rare hostage type situations has through mission creep become the norm for mundane search warrant executions and drug raids. 1

A recent case from Hennepin County District Court which came to my attention by way of a Minneapolis Star Tribune article by Brandon Stahl is a perfect example.  In a trial court order dated July 16, 2016 and attached memorandum of law, Hennepin County District Court Judge Tanya Bransford found "...although the search warrant was supported by probable cause, the no knock provision met the requirement of reasonable suspicion, and the threshold reappraisal was sufficient, the manner of the execution of the unannounced search warrant was unreasonable due to the military style tactics used to execute the search warrant."  State of Minnesota v. Power, Hennepin County District Court Trial Order (July 16, 2016).

In Power, a Confidential Informant had provided detectives with the name and phone number of a house guest staying at a residence in Minneapolis who was allegedly selling marijuana.  A subsequent trash pull within 72 hours yielded packaging material and small amount of marijuana (which is a petty misdemeanor in Minnesota).  A property tax search of the address provided by the CI showed the property was owned by the mother of a Michael Delgado, who was on probation for a DWI and had a permit to carry a handgun.  Based on Power's criminal history which included a Fifth Degee Controlled Substance conviction for possession of marijuana and the property owner's son's license for a permit to carry, the detectives requested a "No Knock" warrant and enlisted the assistance of the Hennepin County Sheriff's Emergency Services Unit, something supposedly reserved for high risk and/or hostage situations.

Judge Bransford described the execution of the search warrant in her memorandum as follows:
　
"The morning of the execution of the search warrant, 18 ESU officers and 10-14 task force officers were briefed. The 18 ESU officers then dressed in riot gear. There were no last minute changes to the plan. The 28 to 32 ESU and task force officers took pre-planned routes to the Residence. The streets were blocked off after waiting to make sure there were no school buses in the area. Since there was a front door and a side door on the Residence, ballistic bunker operators deployed flash bangs, which broke the windows, and then two battering rams were utilized to break the doors. Officers announced themselves by saying, "Sheriffs Office, search warrant," prior to breaking the doors. Several of the ESU officers carried M-4 assault rifles, while wearing military style vests and helmets. The rifles were pointed at the individuals found in the house. "Bear," a tank which holds a sniper, a driver and a cover team member, was used in the execution of the warrant."

During the course of the warrant's execution, "Officers located three adult males including Mr. Power and Mr. Delgado, two loaded handguns, and 221.59 grams of marijuana."

Cases like State v. Power in Minnesota and the Eleventh Circuit's decision in Berry v. Leslie
767 F.3d 1144 (11th Cir.), order vacated pending rehearing en banc, Berry v. Orange County, 771 F.3d 1316 (11th Cir. 2014), subsequently dismissed as moot, Berry v. Orange County,C.A.11 (Fla.)May 08, 2015785 F.3d 553, pose interesting questions for society concerning the use of military style tactics and equipment in civilian law enforcement and their legality.  With the increased scrutiny of police departments and rules of engagement including the use of lethal force one questions whether a militarized police presence is only contributing to the problem.

In the Phillipenes where they recently elected a President who ran on the promise of ending his country's drug problem, it is estimated that 10,000 people have died in just a matter of months at the hands of police and extra judicial killings all because of the exhortations of President Duterte.  Is this the trajectory we really want in the United States if God forbid, a demagougue like Donald Trump were elected?



1.
"The number of specialty police units--and the frequency of their use-- expanded in the 1980s to meet the needs of the war on drugs.15 Today, seventy-nine percent of SWAT team deployments  are for the execution of a warrant, most commonly in drug investigations.16"

Cadman Robb Kiker III, From Mayberry to Ferguson: The Militarization of American Policing Equipment, Culture, and Mission, 71 Wash. & Lee L. Rev. Online 282 (2015) citing
15
See Peter B. Kraska & Victor E. Kappeler, Militarizing American Police: The Rise and Normalization of Paramilitary Units, 44 Soc. Probs. 1, 7 (1997) (explaining that paramilitary police units (PPUs) expanded to being used for “high risk warrant work,” which is almost entirely drug raids).