We previously discussed the horrific injuries to a baby after a Georgia SWAT team threw a stun grenade into a house in a no-knock raid that landed in the baby’s crib. The family had no connection to the alleged crime, the suspect was not in the house, there were no drugs found at the house, and no weapon was found at the house. Just a baby near death after having an grenade explode in his crib. Now the police chief has come out to cast blame on the suspect, Wanis Thometheva, 30, and the prosecutor has suggested that he may be charged with the injury caused by the SWAT team despite the fact that he was not even in the house.

Before the raid, Georgia police say that they purchased drugs at a home and returned with a no-knock warrant late at 3 a.m. to arrest Thometheva. They burst into the home and threw a stun grenade which landed next to the head of a 19-month-old sleeping in his crib and exploded. The baby is in serious condition and is in a medically induced coma. The pictures of the baby are too disturbing to post. The police found no drugs or weapons or even the man they were seeking to arrest in the raid. Police later declared that the state officials have concluded that no further investigation is warranted into the raid or the use of the grenade.

The raid left a charred portable crib. The explosion opened up a gash on the baby’s chest, left one lung inoperable, and left the baby breathing on a respirator with a 50-percent chance of survival. Notably, police arrested the suspect at another home and the family had nothing to do with the crime. There is always a risk of such innocent individuals being in a home — making the use of such grenades an obvious risk to the very young and the elderly.

Now Habersham County Sheriff Joey Terrell is blaming Thometheva for the injuries to the baby and the chief assistant district attorney for the county, J. Edward Staples, says he could be charged for the injuries caused by the SWAT team to the baby.

A charge for the baby’s injury would raise some interesting question since Thometheva was not in the house and many have criticized the SWAT team for excessive force used in the no-knock raid. Indeed, the use of no-knock warrants is on the increase and have caused increasing concerns of these raids. The question is whether such injuries could be avoided if police announced themselves and demand entry. Police now routinely ask and receive warrants that waive the constitutional requirement to “knock and announcement.” Not only is this requirement codified in the U.S. Code, but it is viewed as a factor in determining if a search or seizure is reasonable under the fourth amendment. In 1995, the United States Supreme Court ruled in Wilson v. Arkansas that the requirement was indeed part of the constitutional test and in Richards v. Wisconsin the Court later rejected categorical waivers for “knock and announcement” for cases like drug investigations. Police must show on a case-by-case basis that they have reasonable suspicion of exigent circumstances. Notably, while the Court rejected categorical waivers of “knock and announce” in drug cases, police appear to have practically reached the same result in some states. By noting that guns are suspected, magistrate routinely yield to demands for a no-knock raid.

As shown in this case, raids often have these grenades used upon entry despite the risk to the young and the elderly. The police toss in the grenade without necessarily seeing anyone or a particular threat upon entry. The scene is treated as inherently dangerous and no warning is given before officers burst into a home. That also increases the risk of occupants reacting in the mistaken belief that they are being robbed or assaulted by criminals — something that we have discussed in other cases.

I would be surprised if the prosecutor went forward with this threat since the suspect was not even inside the house. Under this theory, hitting a child while racing to an arrest scene or injuries caused at multiple houses could all be applied against a defendant. However, we have often seen multiple charges in cases of alleged police negligence or abuse. The fact is that criminals do put others at risk by their actions. However, this is too extenuated for such a charge in my view. Of course, if the family sues (as expected), they will have to answer charges by the Sheriff this week that they knew of drug activity in the home. That could present a defense for civil liability for the police counsel in fighting charges of negligence, inflectional of emotional distress, battery, and assault.