by Pam Zubeck
To prove a violation of the Fourth Amendment by the use of excessive force, the plaintiff must establish that a reasonable police officer in the same circumstances would know that he was violating the plaintiff’s protections provided by the Fourth Amendment.Now the case will continue in the discovery phase in preparation for a jury trial, unless one of the parties appeals.
The defendants are correct in that there is no precedent for the claims in this case. In fact, there is no precedent in the experience of the Colorado Springs Police Department for the use of an explosive device in this manner. To be clearly established law it is not necessary that the specific acts in question have not previously been held unlawful. Officers can still be held on notice that their conduct violates the Constitution even in novel factual circumstances. McInerney v. King, 791 F.3d 1224, 1237 (10th Cir. 2015).
These are such circumstances. The reasonableness of the use of the explosive device must be considered in the full context of the case. This stand-off went for eight hours – through the night and into the early morning of the next day. The police officers knew of the vulnerability of the plaintiff and yet they were creating a war zone scene which would be expected to trigger a reaction by a veteran with PTSD. They did not wait for a person qualified to negotiate with Mr. Brown although it is questionable whether it would be reasonable to expect him to respond. What is more significant is the failure to wait for the Army robot which ultimately did what was required to enter the basement without exposing the officers. The explosive device would not have been needed. There has been no explanation for that failure.