Louise Milan v. Billy Bolin , in his individual capacity as Evansville Police Department Chief

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1207
LOUISE M ILAN ,
Plaintiff-Appellee,
v.
BILLY BOLIN , in his individual capacity as Evansville Police
Department Chief, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:13-cv-00001-WTL-WGH — William T. Lawrence, Judge.
____________________
A RGUED J UNE 1, 2015 — DECIDED J ULY 31, 2015
____________________
Before WOOD, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
POSNER , Circuit Judge. The plaintiff brought suit against
the City of Evansville, Indiana, and several of the City’s po-
lice officers, contending that the police had used excessive
force in the search of her home. The district judge granted
summary judgment in favor of the defendants on related
claims by the plaintiff, but all that is before us is the defend-

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2 No. 15-1207
ants’ appeal from the district judge’s denial of their motion
for summary judgment on the excessive-force claim. They
argue that qualified immunity insulates them from liabil-
ity—that is, that there was no established legal principle that
would have informed them that they were using excessive
force.
On June 20, 2012, the Evansville police department be-
came aware of Internet postings that made threats against
the police; a typical posting said “New Indiana law. You
have the right to shoot cops.” The posts came from an Inter-
net Protocol (IP) address at the home of 68-year-old Louise
Milan and her 18-year-old daughter Stephanie (plus another
daughter who wasn’t however at home during the search).
An IP address is like a phone number, but it is a number
that identifies a computer or computer network and so ena-
bles a person operating another computer to communicate
with it. The network in Mrs. Milan’s home was an unsecured
WiFi network, meaning that a person in the vicinity of the
home—standing in the street in front of the house, for ex-
ample—could access the network and send messages from it
without needing to know a password. The threats against
the police could have been posted by someone in her house
on her computer, but equally they could have been posted
through the unsecured network by someone near the house.
That the threats might have come from a person (or per-
sons) inside the Milan home who might moreover be armed
and dangerous was enough to make the police decide to
have the house searched by the department’s SWAT team
forthwith, though, to repeat, the threatening messages could
instead have emanated from outside the house because of
the open network.

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No. 15-1207 3
The defendants say they didn’t know that Mrs. Milan’s
network was unsecured and therefore accessible by someone
outside the house who could use the unsecured network to
send the threatening messages. Although the police had dis-
covered that there was an unsecured network near the
house, they hadn’t bothered to find out whose network it
was, as they could easily have done, precisely because it was
unsecured and therefore accessible. Had they done that they
would have known that it was Mrs. Milan’s network and,
since it was unsecured, that it might have been used (with-
out her knowledge) by someone outside her home to send
the threatening messages. The failure to discover that the
network was Mrs. Milan’s was a failure of responsible police
practice.
The search was conducted on June 21, just one day after
the discovery of the posted threats. Shortly before the search,
police had spotted on the porch of a house just two doors
from the Milan house a man named Derrick Murray, whom
they knew to have made threats against the police in the
past—indeed he had been convicted of intimidating a police
officer. At least two of the officers thought him the likeliest
source of the threats. Prudence counseled delaying the
search for a day or so to try to get a better understanding
both of the Milan household and of Murray’s potential re-
sponsibility for the threats. Prudence went by the board.
Some officers thought, mistakenly as it turned out, that
one or more of three men whose last name was the same as
Mrs. Milan’s were likely threateners. One of them, Marc Mi-
lan, was believed to be a member of a gang and the nephew
of Mrs. Milan’s deceased husband, though in her deposition
in this case she described him as a near stranger whom she

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4 No. 15-1207
had met for the first time after the search. The second male
Milan, Anthony Milan Sr., was a sex offender who had
committed other types of crime as well. He was Mrs. Milan’s
stepson and had lived in her house years prior to the search.
The third male Milan, Anthony Milan Jr., was the son of the
second Milan. His Facebook pictures show him holding
guns. He was only an occasional visitor to his stepgrand-
mother’s house.
At the time of the search only Mrs. Milan and her
daughters were living in the house. No man was living, stay-
ing, or visiting there, and police surveillance revealed no
man entering or leaving between the threats and the search.
Police did see daughter Stephanie come and go from the
house. She happens to be small for an 18-year-old—one of
the officers who saw her thought she was 13 and the other
that she was 15. We’ll see that her size and apparent age are
relevant to the appeal.
So: a house occupied by an elderly woman and her two
daughters; no evidence that any criminals would be present
during the search although the possibility could not be ex-
cluded entirely; no effort to neutralize suspect Murray dur-
ing the search, as by posting police to watch his house and
make sure he didn’t rush over to Mrs. Milan’s house when
the search began. But despite their insouciance about Mur-
ray and the perfunctory character of their investigation be-
fore the search, the police decided to search the Milan
house—and in a violent manner.
A search warrant was applied for and obtained, and the
search was conducted by an eleven-man SWAT team ac-
companied by a news team. The members of the SWAT team
rushed to the front door of the house, knocked, and without

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No. 15-1207 5
allowing a reasonable time—more than a few seconds—for a
response (though they hadn’t gotten a “no knock” warrant;
see Hudson v. Michigan, 547 U.S. 586, 589 (2006)) broke open
the front door and a nearby window, and through these
openings hurled two “flash bang” grenades. These are ex-
plosive devices, similar to but a good deal less lethal than
military hand grenades, that are intended to stun and disori-
ent persons, thus rendering them harmless, by emitting
blinding flashes of light and deafening sounds. They can kill
if they land on a person, especially a child. The police call
them “distraction devices,” an absurd euphemism; we called
them “bombs” in Estate of Escobedo v. Bender, 600 F.3d 770,
784–85 (7th Cir. 2010), and United States v. Jones, 214 F.3d 836,
837–38 (7th Cir. 2000).
As the flash bangs exploded, the police rushed into the
house, searched it from top to bottom (finding no males, and
also no evidence of any criminal activity), handcuffed moth-
er and daughter, led them out of the house, and questioned
them briefly. (The newsmen did not enter the house; had
they done so, this would have been an independent viola-
tion of the Fourth Amendment, Wilson v. Layne, 526 U.S. 603,
611 (1999), because the warrant did not authorize them to
participate in the search.) The mother’s and daughter’s an-
swers to the questions put to them by the police convinced
the police that the women had had nothing to do with the
threats, and so they were released to return to their damaged
and smoking abode. The City of Evansville replaced the bro-
ken door and window, and the burned rug, at the City’s ex-
pense. There was doubtless other damage; we don’t know
whether the City paid for any of it. (Nor do we know the na-
ture and amount of the damages sought by Mrs. Milan in
this suit, though we are guessing that the principal harm for

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6 No. 15-1207
which compensation is sought is emotional. Nor do we
know why Stephanie is not also a plaintiff.)
That no men were found in the house during the raid
confirmed the police in their belief that Murray was respon-
sible for the threats. It took them only a day to discover that
it was indeed he who was responsible—he had used Mrs.
Milan’s open network to threaten the police. But rather than
give him the SWAT-team treatment, the police politely re-
quested that he come to police headquarters, which he did,
where he was arrested without incident. (He was prosecuted
for the threats, pleaded guilty, and was given a sixteen-
month prison sentence.) The police department’s kid-gloves
treatment of Murray is in startling contrast to their flash-
bang assault on Mrs. Milan’s home.
The search of her home was videotaped both by the ac-
companying news team and by a camera mounted on the
helmet of a member of the SWAT team. The members of the
team are seen on the tapes impressively clad in body armor
and big helmets and carrying formidable rifles pointed for-
ward. It would take a brave criminal to try to fight it out
with them, and of course there was no criminal in the house
and little reason to expect one to be there. The handcuffing
of the daughter, looking indeed much younger than her 18
years, is shown on the helmet video along with the rest of
the search, and she is so small, frail, utterly harmless look-
ing, and completely unresisting that the sight of her being
led away in handcuffs is disturbing. All that the SWAT of-
ficer had to do was take her by the hand and lead her out of
the house, which was rapidly filling with smoke from the
flash bangs; there was no conceivable reason to handcuff
her. From what we can observe on the videos, all the mem-

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No. 15-1207 7
bers of the SWAT team were white, Mrs. Milan and her
daughter black; the broadcasting of the videotape cannot
have helped race relations in Evansville.
Police are not to be criticized for taking threats against
them and their families seriously. But flash bangs are de-
structive and dangerous and not to be used in a search of a
private home occupied so far as the police knew only by an
elderly woman and her two daughters. We cannot under-
stand the failure of the police, before flash banging the
house, to conduct a more extensive investigation of the actu-
al suspects: Murray, living two doors away from the Milan
home and thus with ready access to Mrs. Milan’s open net-
work, and the male Milans. The police neglect of Murray is
almost incomprehensible. His past made him a prime sus-
pect. A day of investigating him would have nailed him, as
we know because a day of investigating—the day after the
violent search of the home—did nail him. The district
judge’s denial of the defendants’ motion for summary judg-
ment appears eminently reasonable when one puts together
the flash bangs, the skimpy basis for the search and its
prematurity—the failure to check whether the network was
open and the failure to conduct a more extensive investiga-
tion before deciding that flash bangs were appropriate
means of initiating the search, the resulting neglect of Mur-
ray, and the handcuffing of the daughter.
True, we mustn’t base our decision on the wisdom of
hindsight. If the police had had reasonable grounds for con-
ducting the search as they did (that is, with flash bangs, yet
without any but the most perfunctory, indeed radically in-
complete, preliminary investigation), then the doctrine of
qualified immunity would shield them from liability even

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8 No. 15-1207
though the flash bangs and ensuing search yielded no bene-
fits for law enforcement. But, to repeat for emphasis, the po-
lice acted unreasonably and precipitately in flash banging
the house without a minimally responsible investigation of
the threats. The open network expanded the number of pos-
sible threateners and just one extra day of surveillance, cou-
pled with a brief investigation of Murray and the three male
Milans, should have been sufficient to reassure the police
that there were no dangerous men lurking in the house.
Precipitate use of flash bangs to launch a search has trou-
bled us before, leading us to declare that “the use of a flash
bang grenade is reasonable only when there is a dangerous
suspect and a dangerous entry point for the police, when the
police have checked to see if innocent individuals are
around before deploying the device, when the police have
visually inspected the area where the device will be used
and when the police carry a fire extinguisher.” Estate of Es-
cobedo v. Bender, supra, 600 F.3d at 784–85. The police in this
case flunked the test just quoted. True, they’d brought a fire
extinguisher with them—but, as if in tribute to Mack Sen-
nett’s Keystone Kops, they left it in their armored SWAT ve-
hicle.
So while the defendants are correct to point out that a
reasonable mistake committed by police in the execution of a
search is shielded from liability by the doctrine of qualified
immunity, Anderson v. Creighton, 483 U.S. 635, 641 (1987), in
this case the Evansville police committed too many mistakes
to pass the test of reasonableness.
A FFIRMED

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