                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JUN 11 1999
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    NINA KIRK and EUGENE KIRK,

               Plaintiffs-Appellees,

    v.                                                 No. 98-7052
                                                (D.C. Nos. 97-CV-164-B &
    JOHN WATKINS,                                     97-CV-357B)
                                                       (E.D. Okla.)
               Defendant-Appellant,

         and

    CHRIS TROUSSEL; CITY OF
    MCALESTER, a Political Sub-
    Division; DISTRICT 18 NARCOTICS
    TASK FORCE,

               Defendants.




                             ORDER AND JUDGMENT         *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Defendant-appellant John Watkins appeals from the district court’s order of

summary judgment denying his claim of qualified immunity. We reverse and

remand with instructions to the district court to enter summary judgment in

Watkins’ favor on the basis of qualified immunity.

       On August 19, 1996, Agent Chris Troussel of the District 18 Narcotics

Task Force submitted an affidavit for search warrant to James Bland, a state

district court judge in Pittsburg County, Oklahoma. The affidavit sought a

no-knock search warrant to search for drugs, drug paraphernalia and handguns at

the residence of appellee Eugene Kirk.

       In the affidavit, Troussel recited the following facts in support of the

no-knock warrant. Troussel stated that a confidential informant had seen

approximately twelve long guns and four hand guns in Kirk’s residence. Kirk

almost always kept at least one handgun on his person or within reach. He had

stated that if police came back into his house again, they would not leave the

same way that they entered. An informant had seen methamphetamine, scales,

several small plastic baggies and several weapons including four handguns in


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Kirk’s residence. The affidavit also recited that Kirk had a reputation for

violence and that he had a previous conviction for assault and battery with a

deadly weapon.

      Troussel had previously sought the assistance of the McAlester Police

Department, Special Response Team (SRT) in serving the warrant. Appellant

Watkins is a captain with the McAlester Police Department and commander of the

SRT. The SRT began training in case they were needed to aid in the execution of

the search warrant.

      As part of the SRT’s preparation, Watkins obtained aerial photographs and

a floor plan of the Kirk residence. On May 30, 1996, the SRT laid out a floor

plan of the Kirk residence in a high school gymnasium and practiced possible

entry scenarios. The floor plan included placement of furniture. It was based on

information provided by Troussel, who had gathered information from a prior

warrant executed at the Kirk residence.

      Although it had authorized the no-knock search warrant, the court specified

that it be served during daylight hours. The area around the Kirk house offered

the officers little cover from which to make a stealthy approach. It was decided

that some sort of diversionary tactic would be necessary. Troussel ruled out tear

gas, because he intended to conduct a search of the home after it was secured.

Watkins determined that use of a distraction device would be appropriate.


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      The distraction device chosen was the Deftec No. 25, manufactured by

Defense Technology of America. This device, known along with others of its

kind as a “flashbang” device, produces a loud noise, white smoke and a brilliant

white flash when ignited. The officers planned to deploy two of the devices, one

in the Kirks’ bedroom, and the other in their living room.

      On the evening before the warrant was to be served, Watkins and SRT

officers again practiced their entry into the Kirk residence in the gymnasium. The

next morning at approximately six a.m., the SRT pulled into the driveway of the

Kirk residence and drove to the east side of the house. Officers blasted the lock

of the door to the residence. Meanwhile, Watkins went to the bedroom window

with a flashbang device, cut the screen and threw the flashbang device through

the window (breaking it) and into the bedroom.

      Unbeknownst to Watkins, the Kirks had moved their bed from against the

wall to a location beneath the window. The flashbang device landed on the bed

and started a fire which burned the Kirks, who were lying nude on top of the bed.


                                          I.

      We previously ordered briefing concerning whether the order denying

Watkins qualified immunity was immediately appealable. In       Mitchell v. Forsyth ,

472 U.S. 511 (1985), the Supreme Court held that “a district court’s denial of a

claim of qualified immunity, to the extent that it turns on an issue of law, is an

                                          -4-
appealable “‘final decision’” within the meaning of 28 U.S.C. § 1291

notwithstanding the absence of a final judgment.”     Id. at 530. Summary judgment

determinations which “resolve a dispute concerning an abstract issue of law

relating to qualified immunity” are immediately appealable,    see Behrens v.

Pelletier , 516 U.S. 299, 313 (1996) (quotation omitted), whereas orders which

determine only that there is a genuine issue of fact remaining for trial concerning

the qualified immunity issue are not,   see Johnson v. Jones , 515 U.S. 304, 313

(1995).

       The district court did not deny summary judgment in this case because

disputed issues of fact remained on the qualified immunity issue. Rather, it

addressed an abstract issue of law: whether Watkins’ actions were objectively

reasonable in light of clearly established law. The order denying summary

judgment is therefore immediately appealable, and we have jurisdiction over this

appeal.


                                            II.

       We review the district court’s grant of summary judgment de novo,

applying the same standard as it applied.    See McKnight v. Kimberly Clark Corp.     ,

149 F.3d 1125, 1128 (10th Cir. 1998). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

                                            -5-
material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c).

       Where the summary judgment decision involves a qualified immunity

defense, we review it somewhat differently than other summary judgment rulings.

See Barney v. Pulsipher , 143 F.3d 1299, 1309 (10th Cir. 1998). “Once a

defendant raises the defense, the plaintiff assumes the burden of (1) coming

forward with sufficient facts to show that the defendant’s conduct violated the

law; and (2) demonstrating that the relevant law was clearly established when the

alleged violation occurred.”    Id. (quotation omitted). If the plaintiff fails to

demonstrate that a defendant’s conduct violated the law, we need not reach the

issue of whether the law was clearly established.     See id.

       We consider first, then, whether the Kirks have presented facts which show

that their constitutional rights were violated. It is indisputable that the Kirks had

a Fourth Amendment right not to be subjected to the use of excessive force by

police officers.   See, e.g. , Tennessee v. Garner , 471 U.S. 1, 7-8 (1985). Since

police officers may lawfully use some degree of force to fulfill their duties,

however, this right was violated only if the force used was “objectively

unreasonable.”     See Graham v. Connor , 490 U.S. 386, 396-99 (1989). Whether

the force used in a particular case is objectively reasonable depends on the facts

and circumstances of that case, including such factors as “the severity of the


                                            -6-
crime at issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting to

evade arrest by flight.”   Id. at 396.

       The use of a flashbang device is neither per se objectively reasonable nor

unreasonable. The reasonableness of its use depends on the facts and

circumstances of each case. In     United States v. Myers , 106 F.3d 936 (10th Cir.

1997), for example, we analyzed the      Graham factors as follows:

       The use of a “flashbang” device in a house where innocent and
       unsuspecting children sleep gives us great pause. Certainly, we
       could not countenance the use of such a device as a routine matter.
       However, we also recognize that we must review the agents’ actions
       from the perspective of reasonable agents on the scene, who are
       legitimately concerned with not only doing their job but with their
       own safety. Although it might seem that the [Kansas Bureau of
       Investigation]’s actions in this case come dangerously close to a
       Fourth Amendment violation, we cannot say that their actions were
       objectively unreasonable given the district court’s factual findings.
       The district court found that the agents knew that Mr. Myers had a
       history of illegal drug trafficking, and had spent time in federal
       prison for a fire bombing incident, although they were unsuccessful
       in learning of the details of the incident. The district court obviously
       credited police testimony that Mr. Myers’s lengthy pattern of
       criminal activity – beginning with the fire bombing in 1971 and
       continuing until the cocaine conviction in 1988 – made them
       apprehensive.

Myers , 106 F.3d at 940 (citations and footnote omitted).

       The circumstances justifying the use of a flashbang device in this case are

similar to those in Myers . The agents had reason to believe that Eugene Kirk had

a number of loaded firearms at his disposal, and that he had threatened to kill

                                            -7-
officers if they entered his home again to serve a search warrant. Officers

obviously ignore such threats at their own peril. Moreover, Kirk had a prior

conviction for a violent weapons offense and a reputation for violence. Finally,

the purpose of the warrant was to gather evidence of drug trafficking. Guns and

drugs are a volatile combination. An officer executing a search warrant could

reasonably have believed that use of a distraction device would be likely to lessen

the possibility of injury by allowing police to subdue Kirk without further

violence.   1



      That said, we note the caveats concerning the routine use of distraction

devices expressed by the panel in the      Myers case, and the concerns raised by

Judge Henry in his concurring opinion in      Jenkins v. Wood , 81 F.3d 988, 996-98

(10th Cir. 1996). If police were to adopt “commando-style tactics” as a standard

operating procedure, they would run the risk of violating the Fourth Amendment.

The dangers the officers believed they faced in this case, however, were no more

routine than those we found sufficient to justify the use of a distraction device in

Myers . We agree with the district court that the use of a flashbang device in this




1
       These factors also justify the use of a no-knock warrant and the fact that
the officers shot the lock off of the Kirks’ door to gain entry.

                                             -8-
case did not, in and of itself, constitute a violation of the Kirks’ Fourth

Amendment rights.    2



       The district court concluded, however, that even if use of the flashbang

device was objectively reasonable, Watkins should be denied qualified immunity

because he threw the flashbang device into the Kirks’ bedroom without looking.

The court found that “in spite of his training and the instructions for use of the

flash bang device, Watkins blindly threw the flash bang device into the Plaintiffs’

bedroom without knowing the location of the occupants. Further, Watkins was

aware that the flash bang device could have an incendiary effect upon flammable

objects.” Appellant’s App. Vol. III at 924.

       These facts may be sufficient to show a violation of the Kirks’

constitutional rights. At least one jurisdiction requires officers to detonate

flashbang devices only after they have seen fully into a targeted room.       See

Langford v. Superior Court , 729 P.2d 822, 827 (Cal. 1987). Such a rule would be



2
        The record contains evidence that Eugene Kirk raised and litigated a Fourth
Amendment claim nearly identical to the one he raises here in a state court
suppression hearing. We presume that Kirk did not prevail at the suppression
hearing: Watkins’s docketing statement indicates that Kirk was subsequently
convicted of the underlying offense. It is possible, therefore, that Eugene Kirk is
collaterally estopped from bringing his Fourth Amendment claim by an adverse
state court decision. See Dixon v. Richer , 922 F.2d 1456, 1459 (10th Cir. 1991)
(recognizing possibility of collateral estoppel defense in similar circumstances but
finding Colorado law requirements for collateral estoppel not met). We do not
consider this defense, however, because appellant did not raise it.

                                            -9-
consistent with our precautionary attitude toward the use of such devices.        See

Myers , 106 F.3d at 940.

       Even assuming that a constitutional violation was shown, however, we must

also ask whether the law prohibiting Watkins’ actions was “clearly established”

on August 20, 1996. Generally, to be clearly established, “there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.”   Tonkovich v. Kansas Bd. of Regents     , 159 F.3d 504, 516

(10th Cir. 1998). Watkins’ training materials made reference to the          Langford

case; however, Langford does not specifically address circumstances where the

officer has information concerning the placement of furniture in the room where

the flashbang is to be detonated. Moreover,       Myers , which supports the result in

Langford , was not published until after the actions complained of here. Finally,

we cannot say that Langford necessarily reflects a clearly established weight of

authority. See Commonwealth v. Garner , 672 N.E.2d 510 (Mass. Sup. Ct. 1996)

(holding that officers did not unreasonably execute warrant when officer broke

window and dropped flash-bang device into bedroom in which four-year-old child

was present, even though he failed to look inside bedroom first as required by




                                           -10-
departmental policy). We conclude that Watkins is entitled to qualified immunity,

because his actions did not violate clearly established law.   3




                                            III.

       The judgment of the United States District Court for the Eastern District of

Oklahoma is REVERSED and REMANDED with instructions to enter summary

judgment in favor of Officer Watkins on the basis of qualified immunity.



                                                         Entered for the Court



                                                         Stephen H. Anderson
                                                         Circuit Judge




3
       The Kirks assert, as an alternative basis for affirmance, that the commando-
style raid on their house was entirely unnecessary because Watkins and the other
officers knew that Eugene Kirk was due in court at nine a.m. that same day. They
contend that Watkins should have waited until Kirk had left the house to execute
the warrant.

       Officers are not obligated to pursue the least intrusive practicable means to
conduct a search. See Cady v. Dombrowski , 413 U.S. 433 (1973). Officer
Watkins had information that Eugene Kirk took the drugs with him whenever he
left the residence. It was not objectively unreasonable for him to conduct the raid
at a time when he believed both Kirk and the drugs would be present at the
residence. The Kirks cite no authority for the proposition that an officer who has
obtained a no-knock search warrant is required to wait until the defendant has left
the residence before executing it.

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