June 02, 2007

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SWAT in court: Good news & bad news, Part 2

From the archives of the Calibre Press Street Survival Newsline

Editor's note: This article was originally published at the advent of these court decisions. The information surrounding the cases and the basis of the decisions remain relevant.

This is the final installment of a 2-part series on recent court cases that relate to tactical operations. (Read Part 1)

The first report concerned a decision by the Massachusetts Supreme Court, sustaining as reasonable a SWAT team's use of a distracting flashbang before entering the apartment of a suspected armed robber, despite the close-by presence of a pregnant woman and 2 small children.

This second report explores a state appellate case from California which strips officers of protective immunity from a civil lawsuit in a barricade/hostage situation in which 2 young children were murdered.

100 California city governments, plus the Calif. State Sheriff's Assn., the Calif. Police Chiefs Assn. and the Calif. Peace Officers' Assn., tried to persuade the court to rule differently than it did--but to no avail. The decision, in the eyes of its opponents, now unreasonably binds "police throughout the State...to guarantee the success of each response to a hostage or barricaded suspect situation."

As with the Massachusetts decision, the California ruling technically applies only within that court's jurisdiction. But as a potential future trend from a historically trend-setting state, it warrants close police attention everywhere. Already this case is being prominently reported in national legal journals closely followed by plaintiffs' attorneys.

The case is Souza v. City of Antioch et al., #A071686, made public last month [May 1997] after the decision in April by California's 1st District Court of Appeal in San Francisco. The plaintiff, Jennifer Souza, had sued 2 officers and their employer for wrongful death after her young son and daughter were killed by their father during a hostage standoff on a hot summer Sunday nearly 4 years ago.

The lower court ruled that police did not have a specific duty to protect the children, and said in any event the police were shielded from liability by "sovereign immunity." The court would not permit the case to go to trial. Jennifer appealed, claiming the officers had a "duty to exercise reasonable care" to keep the kids from harm and that the police were not eligible for immunity for their "negligent acts" that resulted in the children's deaths.

Background: Early on the morning of the murders, the father, Joel Souza, upset and despondent over his wife's pending divorce action, accosted Jennifer in a parking lot. He was in a rented van. Their 8-year-old son was in the back of the vehicle. Their 5-year-old daughter was on Joel's lap. He had a gun pointed at her head. "If you don't get in this car," he told Jennifer, "I'll blow her head off." It was not the first time he had threatened to kill the kids.

They all drove to the family home. There Joel held Jennifer at gunpoint for an hour while he peppered her with personal questions. Then he let her go, with the warning that if she told anyone or did "anything stupid," he would murder the children. After some vacillation, Jennifer called 911.

Soon Officer Michael Schneider, a trained hostage negotiator, and other officers were on the scene. They found Joel, armed with possibly 5 different guns, locked in an upstairs bedroom with the kids. Schneider took up a position at the head of the stairs and began talking to Joel through the closed bedroom door.

Schneider thought Joel was depressed and suicidal. The suspect warned that the cops should not try to enter the bedroom "if they don't want anyone to get hurt." Schneider promised that they would not force entry, a pledge that he repeated at least 4 times as the standoff wore on. "That's good," Joel replied at 1 point. "I've got 9 rapid shots ready to go, so please, please cooperate....I have about 300 rounds of ammunition." A SWAT team was summoned.

Several tactics were tried to resolve the situation or at least lessen its danger. The house phone was disconnected so Joel could communicate only with Schneider. Electricity and water were turned off and the furnace turned up full blast, although the day was already hot. Later, after Joel threatened to start shooting, the furnace was turned off on the promise that "something" would be worked out. When Joel wanted to exchange notes with Jennifer, a trade was made: Schneider would deliver 1 note to Jennifer for every gun lowered by a rope out of the bedroom window. Four rifles were recovered this way.

Nearly 5 hours after Jennifer's 911 call, an off-duty captain, Edgar Keller, arrived and took over command from a corporal who had been managing the scene to that point. After the captain was briefed, the possibility of setting a time limit on negotiations was discussed. Schneider recommended against it. He explained later, "In most incidents, time was on our side....[W]e could wait, if necessary, until he fell asleep. We could talk to him for weeks or months."

As he continued to work at building rapport with Joel, it seemed at times like the suspect was close to surrendering. Schneider offered to stand directly in front of him if he came out, to assure he wouldn't be shot. Schneider promised not to handcuff him in front of the children and to "give them some time together." He said the suspect wouldn't be facing serious charges because he hadn't fired any rounds. But Joel, either speaking directly to Schneider or through his son, always needed "a few more minutes."

About 4 hours after taking command, some 9 hours after Jennifer's call, Capt. Keller ordered Schneider to "give him 10 minutes." Schneider had never used a deadline in a hostage situation before. He had been instructed over 13 years of hostage negotiation training that "time deadlines were to be avoided...[n]ot to push the issue to a critical point; to use time as an ally; [that a] person's physiological needs are necessitated by time and can work in your favor." He thought the deadline was inappropriate, but he didn't argue because '[Keller]'s a captain and I'm an officer.'" He delivered the ultimatum to Joel.

Presently, police could be heard on the roof. Schneider called to Joel that "in 3 or 4 minutes," the SWAT team was coming into the bedroom.

When Keller heard this, he "felt alarm." He'd intended the 10-minute warning as a "bluff," not as a hard-line "or else." After the supposed deadline, he said later, "we planned a 20- to 30-minute period of silence or inactivity, during which we expected Souza to surrender or participate more fully in the negotiation process."

When Schneider heard this scheme, he was "surprised and angry." He felt that Keller was "gambling away" the rapport he had worked for hours to build.

Nine minutes after Schneider had issued the ultimatum to Joel and before he could take effective action to correct it, 3 shots were fired in the bedroom. One minute later, SWAT forced entry. Joel had killed the 2 kids, then himself. He was shirtless as Schneider had urged him to be when he was ready to surrender.

Keller said later he had "underestimated" Joel Souza. Schneider felt that a "terrible mistake" had been made. Jennifer Souza, in filing suit, claimed that the police had been responsible for the "negligent wrongful death" of her children.

The trial court didn't see it that way. That judge entered a summary judgment against Jennifer Souza and in favor of Keller, Schneider and their employer, defendants in the lawsuit. The appeals court, however, rejected that decision and said, in effect, that Jennifer's suit has enough merit to be heard. It is that ruling and the reasoning behind it that has police officers, administrators and legal advisors so concerned.

The appellate decision is 27 pages long, but in brief this is its thrust:

The court acknowledges that the police "did not create the [Souza] children's peril." That was done by their father "hours before the police were called." The court also concedes that there was "no assurance, express or implied," that the police would "actually rescue the children." In fact, there was "a great and abiding danger that Joel Souza would kill them at any moment for any or no reason, and no one, not even expert hostage negotiators, could reliably predict, or promise to control, his actions."

Moreover, the court said, the police did not have a duty to protect the children "merely because the APD responded to [Jennifer's] call." Indeed, "[p]olice officers have no affirmative statutory duty to do anything. What they have is the statutory authority to enforce the law." Generally speaking, the court said, case law has well established that an officer's (or other defendant's) failure to act to protect someone "does not give rise to liability." But once a voluntary decision to act is made, then there is an obligation to act reasonably.

At the Souza scene, the court said, "police entered into a special relationship with Jennifer Souza and her children" and "assumed a duty...to exercise reasonable care in taking steps toward" rescuing the youngsters.

This obligation was anchored in the nature of the police response to the barricade incident, the court explained. "No one could talk to Joel Souza except by [police] invitation. When Joel exchanged notes with Jennifer, Schneider told her what to write. When Joel asked to speak with Jennifer, Schneider monitored the content and duration of their talk. He permitted [Joel's mother] to speak with her son only after she agreed to certain conditions. Keller told Joel's [brother and sister] to stay out of the house unless they were summoned. He ordered the 10-minute ultimatum without consulting any of the Souza family. And [the family] was not informed, much less permitted to tell Joel, that it was a ploy."

By taking such exclusive control of the situation, the court said, the police placed Jennifer "in a position of dependence on them for the protection of her children, thus creating a duty on their part to exercise reasonable care...to prevent Joel Souza from harming the children."

Even where a "special relationship" binds an officer to a "duty of care," he or she may still be protected against liability by "sovereign immunity," provided that the officer's alleged negligent acts were "discretionary" rather than "ministerial." In other words, "discretionary acts are immune [to liability]; ministerial acts are not."

In the Souza case, the court said, the discretionary act was "the police's decision to take affirmative action to defuse the situation." All "subsequent choices" in handling the incident after that initial decision were ministerial and thus subject to a jury's determination of whether, as Jennifer Souza's lawsuit claims, they were negligent.

In issuing its decision, the court noted: "We do not worry that our decision will discourage police from performing their jobs with zeal....We are confident that it will not discourage police from rendering assistance in situations that call for their expertise. We are also confident that it will not encourage criminals who otherwise would not take hostages to do so." The costs of defending the lawsuit when it is tried will be borne by the public, and in California there is "mandatory indemnification" of officers for any damages assessed against them. This will reduce "to insignificance the risk of chilling official ardor," the court asserted.

Experienced observers are not so sanguine about the decision. In an interview with the Newsline, Martin Mayer, principle in the law firm Mayer, Coble & Palmer, which filed an amicus brief on behalf of the defendants in this case and which represents dozens of California law enforcement agencies, spoke in direct contrast to the court's commentary on the decision. "This is a terrible decision for law enforcement," Mayer said. "It's absolutely crazy! After a decision like this, why would an officer want to try to help someone? I wouldn't! This decision is going to stop cops from protecting the public. They're damned if they do and they're damned if they don't."

"This is a radical departure from case law," adds attorney Cynthia Blaylock, also with Mayer, Coble & Palmer. "We're going to have to advise our clients that the way to reduce liability is to be as passive as possible."

How will the trial turn out? We'll never know. The Newsline has just learned that attorneys involved in the case have settled for $175,000.

About the author

Charles Remsberg co-founded the original Street Survival Seminar and the Street Survival Newsline, authored three of the best-selling law enforcement training textbooks, and helped produce numerous award-winning training videos. His nearly three decades of work earned him the prestigious O.W. Wilson Award for outstanding contributions to law enforcement and the American Police Hall of Fame Honor Award for distinguished achievement in public service.

Buy Charles Remsberg's latest book, Blood Lessons, which takes you inside more than 20 unforgettable confrontations where officers' lives are on the line.




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