Davis v. Little Rock, City of

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

DERRICK DAVIS PLAINTIFF

v. No. 4:21-cv-763 JM

CITY OF LITTLE ROCK; KENTON BUCKNER,

Individually and in his official capacity; MARK

ISON; ROBERT BELL, individually,

ZACHARY HARDMAN, individually DEFENDANTS

ORDER

This case arises out of the execution of a no-knock warrant by the Little Rock Police

Department’s SWAT team at the home of Plaintiff Derrick Davis on September 6, 2017.

Plaintiff filed suit against Kenton Buckner, who was the chief of police at the time of the search,

the City of Little Rock, and three of the City’s detectives—Mark Ison, Robert Bell, and Zachary

Hardman. The complaint alleges Fourth Amendment violations in obtaining the no-knock search

warrant and in its execution; a Monell claim against the City; a §1983 civil conspiracy claim

between Buckner and the detectives; a single act supervisory claim against Buckner; and

Arkansas state law claims for malicious prosecution, false arrest, and intentional infliction of

emotion distress.

There are two motions for summary judgment pending, one filed by the detectives and

one filed by the City and Buckner. (ECF. Nos. 27 and 31). In responding to the motions for

summary judgment, Plaintiff specifically withdrew his claims for malicious prosecution and false

arrest. The Court finds that Plaintiff has also abandoned his claim for intentional infliction of

emotional distress by failing to respond to the defendants’ motion for summary judgment of this

claim. The defendants are entitled to summary judgment on these state law claims. Satcher v.

Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir. 2009).

Summary judgment is appropriate only when the evidence, when viewed in the light most

favorable to the nonmoving party, shows that there is no genuine issue of material fact, and that

the defendant is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). The initial burden is on the moving party to

demonstrate the absence of a genuine issue of material fact. Celotex, at 323. The burden then

shifts to the nonmoving party to establish that there is a genuine issue to be determined at trial.

Facts

Chief Buckner was contacted via email by a citizen on July 27, 2017, about possible drug

activity at the Sturbridge Townhomes located on Old Forge Drive in Little Rock, Arkansas.

(ECF No. 29-1 at p. 4). The citizen identified a vehicle (tan or gold Jeep Liberty) and Unit 602 as

being the residence where the suspected drug trafficking was happening. Id. Chief Buckner

forwarded the complaint to the Special Investigations Division of the Police Department. Id.

Detective Bell received the complaint in the Narcotics Unit. (ECF No. 32-1 at p. 1). On

July 28, 2017, Bell contacted the citizen complainant who directed him to the neighbor of Unit

602. Id. The neighbor identified the occupants of the apartment as Alexandria Dennis and Ms.

Dennis’s boyfriend. Id. at p. 2. Ms. Dennis and her boyfriend, Plaintiff Derrick Davis, drove a

gold Jeep Liberty at the time. (ECF No. 40 at p. 3).

Bell contacted a confidential informant (“CI”) about assisting in a controlled buy of

narcotics from Davis. (ECF No. 32-1 at p. 2). Bell had worked with the CI before and believed

the CI was reliable due to his successful track record in cases that resulted in convictions. Id. On

September 2, 2017, Bell and Detective Lichti met the CI at a pre-arranged location and

thoroughly searched the CI and the CI’s vehicle according to LRPD policy to ensure the CI did

not have any money, weapons, or contraband such as illegal narcotics. Id. at p. 3. Bell gave the

CI $100 to make the buy from Plaintiff. Id.

Lichti and Bell followed the CI to Unit 602. (ECF No. 32-1 at p. 3; 32-5 at p. 2). The

detectives observed the CI pull in front of the residence, exit his vehicle, and conduct a

transaction with an unknown black male who answered the door at the residence. Id. The

detectives followed the CI back to the predetermined location where the CI gave them a small

baggie of cocaine. Id. Bell searched the CI and the CI’s vehicle again. Id. The CI confirmed the

exchange of $100 for the cocaine which was sold to him by an unknown black male. Id.

Plaintiff denies that he sold cocaine or any narcotic to the CI. He testified in his

deposition that he was approached by Kenneth Ray Robinson on two occasions before the search

of his home. (ECF No. 34-2 at p. 20-21). On the first occasion, Plaintiff was taking groceries

inside his house when Robertson approached him and asked questions about the apartment

complex. Id. The second occasion occurred a couple of weeks later. Id. at 21. Plaintiff and his

girlfriend were at home in the evening when Robinson knocked on the door. Id. Plaintiff opened

the door and Robinson asked, “[H]ey man, do you remember me?” (ECF No. 34-2 at p. 21(77).

Plaintiff testified that Robinson asked more questions about the apartment complex stating that

he was planning to move there. At the time, Plaintiff did not know Robinson’s name. Id. He later

recognized Robinson by photo as the person he had talked with before his arrest. Id.

Following the controlled buy, Bell submitted a search warrant affidavit to Little Rock

District Court Judge Hugh Finkelstein that included the facts related to the controlled buy and

the assertion that the CI has provided information to the LRPD on at least two occasions that had

proven to be correct by independent sources and personal observations. (ECF. No. 32-1 at p. 14-

17). Bell also stated that in his eighteen-year career with the LRPD he has participated in a

number of search and seizure warrants, the majority of which involved dynamic entries into

residences “whereby the element of surprise was utilized to prevent the destruction of the

evidence sought and to provide a greater degree of safety for both the executing officers and

individuals present at the location where the warrant was being executed.” Id. at 16. Bell also

stated that “based on his experience that individuals dealing in illicit narcotics have access to

firearms and will readily arm themselves to protect this contraband” and that executing the

warrant without the knock-and-announce requirement “would greatly reduce the risk to and

increase the safety of the executing officers and occupants . . .and the likelihood of the evidence

sought being disposed of or destroyed would also be greatly diminished.” Id.

On September 5, 2017, Judge Finkelstein issued the search warrant as requested, which

excluded the knock-and-announce requirement. (ECF. No. 32-1 at p. 4). “[A]ccording to LRPD

policy,” Bell met with the SWAT team before the warrant was executed on September 6, 2016.

Id. The LRPD SWAT unit decided how to execute the warrant, including the manner of entry. Id.

Plaintiff testified that on the day the search warrant was executed, he was at home

because it was his day off of work. (ECF No. 34-2 at p. 9). He had been cooking and was

cleaning up when he heard someone yell, “Little Rock Police.” Id. There was an explosion at his

door. He immediately fell to the ground and laid on his face with his arms out. Id. He testified

that one officer checked to see if he was ok, and the rest of the officers searched his house. Id.

After Plaintiff’s hands were zip-tied behind his back and he was seated on his couch, “the main

detective in the case” asked Plaintiff if he remembered selling him cocaine twice. Plaintiff told

him he had the “wrong guy.” Id.

During the search, the officers found a jar and a plastic container containing a total of

51.1 grams of marijuana, a digital scale, a 9mm pistol registered to Plaintiff, and a box of

ammunition. (ECF No. 32-1 at p. 4). Plaintiff was arrested and charged with possession of

marijuana with purpose to deliver, possession of drug paraphernalia, maintaining a drug

premises, and possession of a controlled substance and a firearm. (ECF No. 29-9). The charges

were eventually dropped. (ECF No. 38-2 at p. 18).

There is evidence in the record that officers were required to use the SWAT team to

execute all search warrants, regardless of whether the officers have any knowledge of an

occupant’s violent tendencies or gun crime history. (ECF. No. 38-4 at 21). There was a

“mandate” from the Office of the Chief of Police that the SWAT team execute all search

warrants involving narcotics. (ECF. No. 38-21).

The Detectives’ Motion for Summary Judgment

In Count I of his complaint, Plaintiff alleges Bell and Hardman intentionally

misrepresented facts in Bell’s search warrant affidavit submitted to Judge Finkelstein in order to

obtain a no-knock warrant. He alleges that the actions of Bell and Hardman were “unnecessary,

objectively unreasonable and excessive and were, therefore in violation of their [sic] Fourth and

Fourteenth Amendment rights.” (ECF No. 1 at p. 15). As the detectives point out and Plaintiff

concedes, Hardman was not involved in the controlled buy, the affidavit for search warrant, the

search, or Plaintiff’s arrest. (ECF No. 40 at p. 11-12).1 Plaintiff has no evidence of Hardman’s

connection to the case. Therefore, Hardman is dismissed

Bell filed a motion seeking qualified immunity on the claims that they violated Plaintiff’s

Fourth Amendment rights in obtaining the search warrant and in executing it. He also seeks

summary judgment on the civil conspiracy claim. To resolve the issue of qualified immunity, the

Court undertakes a two-part inquiry to determine: (1) whether the facts viewed most favorably to

the plaintiff make out a violation of a constitutional right, and (2) whether that right was clearly

1 Plaintiff did not respond to the Requests for Admission within the 30 days prescribed by Rule 36(a)(3). Therefore,

the facts regarding Hardman are deemed admitted.

established at the time of the challenged conduct. Masters v. City of Indep., Missouri, 998 F.3d

827, 835 (8th Cir. 2021); Watson v. Boyd, No. 20-1743, 2021 WL 2671317 (8th Cir. June 30,

2021). The Court will undertake this analysis separately for each of the alleged Fourth

Amendment violations.

Obtaining the search warrant.

The Fourth Amendment protects an individual’s right to be free from unreasonable

searches and seizures and provides that “no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.” United States v. Koons, 300 F.3d 985, 990 (8th Cir. 2002); U.S.

CONST. Amend. IV. Plaintiff had a constitutional right to be free from having a warrant issued

in the absence of probable cause. That right was clearly established by September of 2017, which

leaves the question of whether viewing the evidence in the light most favorable to Plaintiff, the

detectives are entitled to summary judgment.

“Probable cause exists, if under the totality of the circumstances, a showing of facts can

be made sufficient to create a fair probability that evidence of a crime will be found in the place

to be searched.” United States v. Wallace, 550 F.3d 729, 732 (8th Cir. 2008) (citations and

internal quotation marks omitted). A warrant may be invalidated if a police officer deliberately

or recklessly makes false statements to demonstrate probable cause for a warrant. Franks v.

Delaware, 438 U.S. 154 (1978). To establish a Franks violation based on the omission of

material facts, a plaintiff must prove: “(1) that facts were omitted with the intent to make, or in

reckless disregard of whether they thereby make, the affidavit misleading, and (2) that the

affidavit, if supplemented by the omitted information, could not support a finding of probable

cause.” Z.J. by & through Jones v. Kansas City Bd. of Police Commissioners, 931 F.3d 672, 686

(8th Cir. 2019) (quoting United States v. Box, 193 F.3d 1032, 1035 (8th Cir. 1999)). The omitted

information must be “clearly critical to the finding of probable cause.” Hawkins v. Gage Cnty.,

Neb., 759 F.3d 951, 959 (8th Cir. 2014) (quoting United States v. Reivich, 793 F.2d 957, 961 (8th

Cir. 1986) (emphasis added). Similarly, to establish a Franks violation for including false

statements, a plaintiff must prove “1) that a false statement knowingly and intentionally, or with

reckless disregard to the truth, was included in the affidavit, and 2) that the affidavit's remaining

content is insufficient to provide probable cause.” Williams v. City of Alexander, Ark., 772 F.3d

1307, 1311 (8th Cir. 2014) (quoting United States v. Humphreys, 982 F.2d 254, 259 n. 2 (8th Cir.

1992)).

Plaintiff alleges the following omissions in Bell’s affidavit invalidate the warrant: (1) no

mention that the SWAT team would be involved; (2) no mention of the use of explosives to gain

entry; and (3) no mention that other options existed besides the no-knock warrant. Plaintiff has

not established that these are material omissions that were intended to make, or with reckless

disregard made, the search warrant affidavit misleading. As to the decisions made by the SWAT

team at the time the warrant was executed, there is no evidence that Bell had control over how

the SWAT team executed the warrant. Furthermore, even if these challenged omissions had been

included, Bell’s statements regarding the controlled buy would still have created a fair

probability that evidence of a crime would be found at the residence.

Plaintiff also identifies eight alleged affirmative misrepresentations in the warrant

application. Plaintiff’s first alleged misrepresentation is that Bell would knock and announce if

he felt that he could safely do so upon arrival to the residence when he had no intention of doing

so. Second is that Bell would personally assist in the execution of the search and seizure warrant

when he knew that the SWAT team would execute the warrant. Third is the statement that “the

majority” of the numerous searches and seizures Bell had participated in involved dynamic entry,

when he knew that every warrant he had served was a no-knock warrant. These three statements

relate to the intended execution of the warrant. The Fourth Amendment does not require that a

search warrant specify the manner in which the warrant is to be executed; “[o]n the contrary, it is

generally left to the discretion of the executing officers to determine the details of how best to

proceed with the performance of a search authorized by warrant” subject always to the protection

against unreasonable searches and seizures. Dalia v. United States, 441 U.S. 238, 257, 99 S. Ct.

1682, 1693, 60 L. Ed. 2d 177 (1979). Furthermore, removing these statements would not affect a

determination of probable cause.

The fourth alleged misrepresentation argued by Plaintiff challenges “glaring investigation

deficits” in the use and monitoring of CIs. Plaintiff alleges that Bell did not conduct a thorough

search of the CI before the controlled buy. Plaintiff further alleges that Bell did not record

discussions with the CI and failed to get a written statement from him or her in violation of

LRPD policy. Plaintiff also makes a vague allegation that there were discrepancies between

Bell’s statements in the affidavit for search warrant, his contemporaneous controlled buy memos,

and his deposition testimony. In the absence of a specific statement in the affidavit alleged to be

false, these arguments are not sufficient to establish a Franks violation.

For the fifth alleged misrepresentation, Plaintiff challenges Bell’s affidavit statement that

the element of surprise afforded by a no-knock warrant “greatly enhance[s] the safety to law

enforcement officers executing the warrant and the occupants of the residence” and “would

greatly reduce the risk to and increase the safety to executing officers and occupants. . . .” (ECF

No. 32-1 at p. 16). In support of his argument, Plaintiff relies on a 2003 report written by

Sergeant Steven McClanahan, a LRPD police administrator with SWAT training, titled “Tactical

Explosive Breaching: An Introduction on the use of Explosives in Today’s Police Department”

(ECF No. 34-7) and a 2014 Warrant Service SWAT Unit Training Memo (ECF No. 34-8).

McClanahan’s report addresses the use of explosives—Bell’s challenged statements referred to

no-knock warrants, not to the use of explosives. The training memo recites that it is “ALWAYS

safer to bring suspect(s) out to us rather than go into the unknown after them,” but Plaintiff has

submitted no evidence that Bell received the SWAT training memo in 2014. These documents do

not establish that Bell’s statements about officer safety were knowingly and intentionally false or

made with reckless disregard to the truth.

The Court cannot distinguish Plaintiff’s sixth alleged misrepresentation—which also

challenges Bell’s statement that risk of harm would be reduced with a surprise entry—from the

fifth. To the extent Plaintiff attempts in this section of his brief to challenge the statement that a

no-knock warrant would prevent the destruction of evidence, he has failed to establish that this

statement was knowingly false or made with reckless disregard for the truth.

In his seventh alleged misrepresentation, Plaintiff challenges the assertion that the

warrant affidavit was based on information from a reliable informant. As stated, Plaintiff

testified that the CI in this case was Kenneth Ray Robinson. While it is true that CI Robinson

was terminated as a confidential informant by the LRPD in 2019, Plaintiff has not provided

evidence that Bell misrepresented his belief that Robinson was reliable when he filled out the

affidavit in September of 2017. Plaintiff recites Kenneth Ray Robinson’s criminal history and

cites Exhibit 34-16 which is a collection of documents pertaining to Robinson’s criminal history.

However, CIs often have criminal histories. A criminal history does not necessarily mean a CI is

unreliable. See United States v. Gabrio, 295 F.3d 880, 884 (8th Cir. 2002) (“[T]ipsters often

provide information in the hopes of obtaining leniency with respect to their own situation and

that does not necessarily mean they are unreliable.”). Plaintiff has failed to demonstrate that Bell

deliberately or recklessly included a false statement or omitted a truthful statement from his

warrant affidavit.

In his eighth alleged misrepresentation, Plaintiff challenges Bell’s statements in the

warrant affidavit that the CI had a high rate of success providing information which led to

arrests. In Bell’s warrant affidavit, he avowed that that the “reliable confidential informant . . .

has provided information to the Little Rock Police Department pertaining to Narcotics trafficking

in the Little Rock, Pulaski County area on at least two (2) occasions and this information was

proven correct by other independent sources and personal observations” (ECF. No. 32-1 at p.

15). Bell has not proven that this statement was false. “The reliability of a confidential informant

can be established if the person has a history of providing law enforcement officials with truthful

information.” United States v. Mayweather, 993 F.3d 1035, 1044 (8th Cir. 2021), reh'g denied

(May 19, 2021) (quoting United States v. Wright, 145 F.3d 972, 975 (8th Cir. 1998)); see also

Gabrio, 295 F.3d at 883 (reliability can be established where the informant has provided reliable

information on at least two occasions).

Moreover, “[i]nformation may be sufficiently reliable to support a probable cause finding

if it is corroborated by independent evidence.” United States v. Knutson, 967 F.3d 754, 758 (8th

Cir. 2020) (quoting United States v. Keys, 721 F.3d 512, 518 (8th Cir. 2013)). In this instance the

information learned from the CI was corroborated by the controlled buy witnessed by Bell and

Lichti. Plaintiff has not established that Bell’s statements in the warrant affidavit regarding the

CI in this case were false or that they were made with reckless disregard for the truth.

The Court finds that the warrant affidavit established probable cause that drugs were

being sold from Plaintiff’s home and that Plaintiff has failed to establish a Franks violation.

Even if the CI did not actually buy cocaine from Davis during the controlled buy, Bell had a

good faith belief that the buy occurred based upon his surveillance of the alleged buy and his

search of the CI both before and after the encounter. Bell is entitled to qualified immunity on this

claim.

Executing the no-knock warrant.

Next the Court must determine if Bell and Ison are entitled to qualified immunity on

Plaintiff’s claim that his Fourth Amendment rights were violated in the execution of the no-

knock warrant “despite the lack of a ‘high risk situation’ and other criteria.” (ECF. No. 1 at p.

16). 2

The detectives argue that there was no Fourth Amendment violation in the execution of

the warrant and that they relied in good faith on the warrant’s no-knock authorization. “[A]

warrant generally confers a ‘shield of immunity’ to officers acting within the scope of its

authority” on the premise that “where a neutral magistrate has issued a warrant is the clearest

indication that the officers acted in an objectively reasonable manner.” Kiesling v. Holladay, 859

F.3d 529, 533 (8th Cir. 2017) (quoting Messerschmidt v. Millender, 565 U.S. 535, 546-548

(2012)). Officers are not entitled to the benefit of this shield when “it is obvious that no

reasonably competent officer would have concluded that a warrant should issue.”

Messerschmidt, 565 U.S. at 457 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). For good

reason, “the threshold for establishing this exception is a high one.” Id.

Wilson v. Arkansas, 514 U.S. 927 (1995), established that the “common-law ‘knock and

announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment”

and noted that circumstances may justify an unannounced entry. Id. at 929. In Richards v.

2 Plaintiff included Detective Hardman in this claim. However, it is undisputed that Hardman was not involved in

the execution of the search warrant.

Wisconsin, 520 U.S. 385 (1997), the Court rejected the adoption of a blanket exception to the

knock-and-announce requirement in the execution of search warrant arising from a felony drug

investigation, holding “[i]n order to justify a ‘no-knock’ entry, the police must have a reasonable

suspicion that knocking and announcing their presence, under the particular circumstances,

would be dangerous or futile, or that it would inhibit the effective investigation of the crime by,

for example, allowing the destruction of evidence.” Id. at 394. The Court described the

reasonable suspicion requirement as “not high” and determined that “[t]his standard—as opposed

to a probable-cause requirement—strikes the appropriate balance between the legitimate law

enforcement concerns . . . and the individual privacy interests affected by no-knock entries.” Id.

Plaintiff’s response to the detectives’ motion for summary judgment significantly

narrows the scope of the qualified immunity analysis from that argued by the detectives.

Plaintiff frames the issue as whether it was clearly established in September 2017 that “the use of

flash bang grenades regardless of the circumstances at the target residence” was unconstitutional.

(ECF. No. 34 at p. 24). Plaintiff relies on Z.J. by & through Jones v. Kansas City Bd. of Police

Commissioners, 931 F.3d 672 (8th Cir. 2019), in which the Eighth Circuit found that the SWAT

team members were not entitled to qualified immunity because “it was clearly established in

2010 that the use of flash-bang grenades is unreasonable where officers have no basis to believe

they will face the threat of violence and they unreasonably fail to ascertain whether there are any

innocent bystanders in the area it is deployed.” Id. at 685.

With this bright line established, the next inquiry is whether there was a constitutional

violation in this instance. There is no evidence that the detectives were aware of a violent history

by the plaintiff, no evidence of the presence of weapons, and no evidence that any surveillance

was conducted immediately prior to the execution of the warrant to determine who was present

in the home. However, in the present case, as in Z.J., a SWAT team executed the search warrant,

not the detectives. (ECF. No. 27-1 at p. 5; 27-2 at p. 3). The plaintiffs in Z.J. named the SWAT

team members as defendants as well as the detectives, and the Eighth Circuit held that the

SWAT team’s conduct in utilizing flash bang grenades under the circumstances was

unconstitutional. Plaintiff did not name the SWAT team members as defendants in this action.

And there is no evidence that Bell or Ison were responsible for the decisions made by the SWAT

team.3 As Bell stated in his affidavit, “The LRPD SWAT Unit decided how to execute the

warrant, including the manner of entry.” (ECF. No. 32-1 at 4).

In analyzing the detectives’ claim of qualified immunity in Z.J., the Eighth Circuit held

that since § 1983 liability only attaches to individual actions, “the detectives only violated the

Fourth Amendment if their own actions were directly responsible for a deprivation of the

plaintiff's rights. They are not automatically responsible for all of the actions of the SWAT team

officers.” Z.J., 931 F.3d at 688. The same analysis applies in this case, and the Court finds that

Bell and Ison are entitled to qualified immunity on the claim that they violated Plaintiff’s Fourth

Amendment rights by the use of flash bang grenades as the evidence does not establish that they

were the ones who used the devices or made the decision to use them.

Civil conspiracy.

Because the Court has found that the detectives did not violate Plaintiff’s Fourth

Amendment rights, the § 1983 claim for civil conspiracy necessarily fails. See Kingsley v.

Lawrence Cnty., 964 F.3d 690, 702 (8th Cir. 2020).

3 Plaintiff argues that Bell “absolutely knew explosive devices would be used in the warrant

execution he sought” but the exhibit he cites, Exhibit 5 (ECF. No. 34-5), does not support this

assertion. (ECF. 34 at p. 11).

The City and Kenton Buckner’s Motion for Summary Judgment

The City and Buckner in his official capacity.

Under Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978) and its

progeny, a city may be liable under § 1983 for a constitutional violation if the violation resulted

from an official municipal policy or an unofficial custom or practice. The official capacity claim

against Buckner is treated as a claim against the City. Brockinton v. City of Sherwood, Ark., 503

F.3d 667, 674 (8th Cir. 2007). Before municipal liability can attach, “individual liability first

must be found on an underlying substantive claim.” Moore v. City of Desloge, Mo., 647 F.3d

841, 849 (8th Cir. 2011) (quoting McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir.

2005). Since the Court has found that the detectives are entitled to summary judgment on

Plaintiff’s Fourth Amendment claims, there can be no municipal liability stemming from their

actions. The City and Buckner in his official capacity are entitled to summary judgment.

Buckner in his individual capacity.

Kenton Buckner was Chief of the Little Rock Police Department at the time of the search

of Plaintiff’s home in 2017. He had final decision-making authority to create policies within the

LRPD. Viewing the facts most favorable to Plaintiff, he had maintained an official policy that

required LRPD officers to use the SWAT team to execute all search warrants when narcotics

were involved; see April 7, 2014 internal memo referencing “a mandate from the Office of the

Chief of Police that the SWAT team execute all search warrants.” (ECF. 38-21). In his

arguments, Plaintiff vigorously challenges the use of no-knock warrants by the LRPD. In doing

so, he incorrectly conflates the policy of utilization of the SWAT team with the execution of no-

knock warrants. Plaintiff points to no evidence that the use of no-knock warrants was part of the

policy established by Buckner. Plaintiff refers to the April 7, 2014 memo as the “no-knock

mandate” but the memo does not mention no-knock warrants. Nor does the cited testimony from

non-party Detective Rainey’s deposition reference a no-knock mandate as Plaintiff argues. (See

ECF No. 38-4 at p. 9).

To determine Buckner’s claim for qualified immunity, the Court has to determine

whether the policy to use SWAT to execute all narcotics warrants caused a Fourth Amendment

violation and whether that violation was clearly established in August of 2017. Assuming no-

knock warrants equal using a SWAT team, Plaintiff relies on Richards v. Wisconsin, 520 U.S.

385 (1997) to establish the bright line required in the second prong of the analysis. However,

nothing in Richards forecloses a policy of using the assistance of a SWAT team to execute

warrants in narcotics cases.

The Eighth Circuit has acknowledged that “[a]n officer’s decision to authorize a SWAT

team to execute a warrant can, in some cases, constitute a Fourth Amendment Violation.” Z.J.

931 F.3d at 688 (citing Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1189–92 (10th

Cir. 2001). The court stated, “it is clear the decision to send a SWAT team into a residence must

be reasonable.” Id. at 688. However, the Eighth Circuit declined to decide whether the

detectives’ decision to utilize the SWAT team in Z.J. was reasonable. The court called it a “close

question” as to whether there had been a constitutional violation under the facts of the case, but

concluded that even if there was a violation, the law was not clearly established that “using a

SWAT team to execute a [knock-and-announce] search warrant under these circumstances

violated the Constitution.” Id. Likewise, Plaintiff does not point to any law establishing that as of

September of 2017 it was unreasonable to utilize a SWAT team in the execution of a no-knock

warrant.

Therefore, without deciding if the existence of the policy was a constitutional violation,

the Court finds that it was not clearly established that the policy violated the Fourth Amendment

in the summer of 2017. Therefore, the Court finds that Buckner is entitled to qualified immunity.

Even if the Court accepted the conflation of no-knock warrants with the use of SWAT

teams, the facts in Richards were that the investigating officers had applied for no-knock

authorization in their warrant, that request was rejected by the magistrate, and the officers made

a decision in the course of executing the warrant to enter without knocking and announcing their

presence. The United States Supreme Court reversed the decision of the Wisconsin Supreme

Court that “police officers are never required to knock and announce their presence when

executing a search warrant in a felony drug investigation.” /d. at 387. In the present case, Bell

applied for and received no-knock authorization from the magistrate. Nothing in Buckner’s

policy mandated the use of no-knock entry in the execution of all warrants involving narcotics

without having prior no-knock authorization from a magistrate.

Conclusion

The Motion for Summary Judgment filed by Detectives Bell, Hardman, and Ison (ECF

No. 31) and the Motion for Summary Judgment filed by Buckner and the City of Little Rock

(ECF No. 27) are GRANTED. The motion to exclude Plaintiff's expert (ECF No. 55) is MOOT.

IT IS SO ORDERED this 3rd day of March, 2023.

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