Can the number of police officers executing a warrant constitute excessive force?

Make sure you can articulate circumstances that establish the number of officers executing a warrant is “objectively reasonable”


The 10th Circuit addressed this issue last year in Estate of Redd v. Love, et al.

Bureau of Land Management (BLM) and FBI agents, jointly investigating the theft and trafficking of Native American artifacts from federal lands in southern Utah and the Four Corners region, obtained many search and arrest warrants, including warrants to arrest Dr. and Mrs. Redd and to search their house. Agent Love served as the lead BLM agent for the operation.

Twelve teams of BLM and FBI agents simultaneously executed search warrants at different locations. Each team was comprised of eight to 21 federal agents and at least one cultural specialist. Upon completing their assigned searches, agents reported to other search locations to assist as needed.

In this Oct. 12, 2017 photo, police officers arrest a man with an outstanding warrant. (AP Photo/Ted S. Warren)
In this Oct. 12, 2017 photo, police officers arrest a man with an outstanding warrant. (AP Photo/Ted S. Warren)

Concerned for their safety because some locals had previously acted hostilely toward federal officials, each team had an operations plan identifying its target location and any expected obstacles. BLM and FBI policy required agents to wear soft body armor and carry a firearm when executing warrants or confronting potentially dangerous situations.

The plan to search the Redd’s house advised that Dr. and Mrs. Redd, their adult daughter and her minor son resided there. The plan further advised the residence was on an elevated hill so that its extended driveway was visible from the house. The agents didn’t know if the Redds owned guns, or if anything barricaded entry onto the property or into the house.

Dr. and Mrs. Redds were arrested without incident and released after their initial court appearance, returning home about 5:00 pm the same day. Agents were still searching the house but finished around 5:30 pm and the Redds re-entered their home. Dr. Redd committed suicide the next day.

Dr. Redd’s estate sued. The issue before the Tenth Circuit on appeal was whether the large number of heavily armed agents – up to 22 at one point – to execute the search warrant for a non-violent offense constituted excessive force under the Fourth Amendment. The estate argued that the Graham factors established the number or agents was objectively unreasonable.

The Tenth Circuit held,

“The Fourth Amendment reasonableness analysis is not limited to the three Graham factors. Here, an analysis based strictly on the Graham factors wouldn’t reach all the circumstances relevant in considering the Estate’s Fourth Amendment claim.”

The court went on to note that even Graham, quoting Garner, stated the reasonableness analysis always depends on whether the totality of the circumstances justified the conduct at issue.

The court found the circumstances provided good reason for Agent Love to send a large number of agents:

  • Based on longstanding tension and a history of violence between the federal government and some residents in the area, agents had ample reason to believe they were going into a hostile environment.
  • The Redds had two adult sons the agents had reason to believe were hostile toward the federal government. During the search, one of the sons called twice and made threatening comments about coming to the scene. Some agents took defensive positions outside in case the son carried out his threat.
  • Dr. Redd had been previously arrested in a highly publicized case for desecrating a dead body while digging for Native American artifacts.
  • The search of the residence required searching for and sorting over 800 artifacts, which also justified a large number of agents.

The Tenth Circuit concluded,

“We leave open the possibility that sending a large number of agents to execute a search warrant and arrest warrant for a nonviolent crime can amount to excessive force. But this isn’t that case.”

To ensure you and your agency don’t become that case, make sure you can articulate circumstances that establish the number of officers executing a warrant is “objectively reasonable.” Otherwise, the number alone may constitute excessive force, even if they don’t otherwise engage in forceful conduct.

[Note: As to a separate argument that Agent Love acted with excessive force in how the agents were dressed and equipped, the court noted that was not the agent’s decision but was in accordance with their respective agencies’ policies.]

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