Judge denies summary judgment motions in suit over police use of flash bang in drug-related raid

By Andrew Thomason | Apr 28, 2014

A federal lawsuit brought by a woman who claims she was injured when the Chicago Police Department deployed a noise flash diversionary device in a drug raid will move forward after a judge earlier this month denied requests for summary judgment.

Donna Flournoy filed suit in 2010 against the City of Chicago and a group of Chicago police officers, seeking damages for injuries allegedly sustained from the use of a device also known as a flash bang. She accuses the defendants, many of whom have since been terminated, of excessive force and intentional infliction of emotional distress.

In an April 15 ruling, U.S. District Judge William Hart denied Flournoy's motion for summary judgment on the issue of liability on her excessive force claim against two police officers, Daniel Colbenson and Patrick Quinn.

Hart, in the same 16-page ruling, also denied Colbenson's request, which alleged he was entitled to summary judgment because he didn't personally deploy the flash-bang and has qualified immunity as a police officer.

The latest docket entry in the case shows a status hearing took place on April 24, when Hart set another status hearing for May 8 and determined a submission deadline for a final pretrial order would be rescheduled at a later date.

Flournoy's suit stems from a Nov. 13, 2008 raid on a Chicago apartment.

She was lying on an air mattress in the garden-level apartment at the time, according to the ruling that notes Flournoy's two sons, Tony Walker and Mario Hearring, were in the kitchen and Walker’s girlfriend, Tyesha Hunter, was in the living room.

While Flournoy was lying on the mattress, police officers, including members of a SWAT team and the Chicago Police Department Mobile Strike Force, were surrounding the apartment.

Police, the ruling states, had received a tip that an armed drug dealer was selling crack cocaine out of the apartment Flournoy was in and got a warrant to search it for illegal drugs, money, paraphernalia and guns.

Within seconds, the police broke the front windows of the apartment, began streaming in through the front and back doors, and deployed the flash bang that spawned the lawsuit.

Quinn, the defendant police officer who deployed the flash bang, claims he "looked through the doorway and did not see any people or combustible materials in what he described as a safe area where the flash bang was going to land. He then tossed the device," according to Hart's ruling.

The flash bang --which generates heat that can exceed 3,500 degrees Fahrenheit, a bright flash of light and a deafening noise -- hit and injured Flournoy's knee. The raid also resulted in the arrest of her son, Walker, on drug and weapons charges.

More than a year and a half after the incident, Flournoy filed suit, contending police had used excessive force in the raid in violation of her Fourth Amendment rights. She also claims her injury from the flash bang constituted assault and battery, as well as intentional infliction of emotional distress.

Her suit also includes a Monell Claim, a principal dealing with when municipalities can be sued, alleging that the City of Chicago should be liable for any compensatory judgment or settlements against the police officer defendants based on police department's policy regarding the use of flash bangs.

In seeking summary judgment over liability on her excessive force claim, Flournoy argued that she was entitled to it because the defendants didn't know or try to learn that she was an innocent bystander when they raided the apartment and deployed the flash bang.

When considering her motion, Hart explained he had to construe the evidence in a light most favorable to the defendants. And in this case, he wrote, Quinn claimed he didn't see Flournoy before tossing the flash bang.

"If a jury accepts the police officer's testimony ... there could be a finding of no liability on the part of either defendant," Hart wrote. "Viewing the evidence in the light favorable to defendants, plaintiff's motion must be denied."

The opposite, however, is true when it comes to Colbenson's request for summary judgment. Hart wrote that when considering his motion, he had to construe the evidence in a way most favorable to the plaintiff.

In denying Colbenson's motion for summary judgment, Hart wrote that, "A jury could conclude that defendant engaged in unreasonable force taking into account that he was a leader and active participant in forceful entry of the apartment; that is conduct could be viewed as extreme and unreasonable ... and because reasonable precautions were not taken to protect bystanders exposed to serious injury by use of the flash bang deployed."

Hart further noted that there are "disputed facts which require a trial before a determination can be made that qualified immunity applies."

In addition to the City of Chicago, Quinn and Colbenson, Flournoy's suit named six other police officers, but they were terminated as defendants last summer.

Flournoy is being represented by Chicago attorneys Jeffrey Neslund of the Law Offices of Jeffrey Neslund and Michael Robbins of Michael D. Robbins & Associates.

Attorneys James Sotos, Christina Gunn and John Timbo of the Sotos Law Firm in Itasca are representing the defendants.


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