milan v evansville d 79 plantiffs response

5/19/2018 Milan v Evansville D 79 Plantiffs Response

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

LOUISE MILAN, )

)Plaintiff, )

)

v. ) CAUSE NO. 3:13-cv-00001-WTL-WGH

)

CITY OF EVANSVILLE, et. al. )

)

Defendants. )

PLAINTIFFS RESPONSE IN OPPOSITIONTO DEFENDANTS

MOTION FOR SUMMARY JUDGMENT

Case 3:13-cv-00001-WTL-WGH Document 79 Filed 09/11/14 Page 1 of 50 PageID #: 711


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TABLE OF CONTENTS

I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. STATEMENT MATERIAL FACTS IN DISPUTE . . . . . . . . . . . . . . . . . . . . . . . . 2

A.

Plaintiffs Response to Defendants Statement of

Undisputed Material Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Plaintiffs Statement of Additional Material Facts . . . . . . . . . . . . . . . . . . . 13

III. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

A. The Standard on Summary Judgment. . . . . . . . . . . . . . . . . . . . . . . . . 26

B.

Milans 42 U.S.C. 1983 Claims for Unreasonable Search and

Seizure and Excessive Force. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

i. Unreasonable Search and Seizure and Excessive Use of Force . . . 27

(a) Severity of the Crime at Issue. . . . . . . . . . . . . . . . . . . . . . 29

(b) Whether the Suspect Poses an Immediate

Threat to the Safety of Officer or Others . . . . . . . . . . . . .29

(c) The Search Warrant and Investigation . . . . . . . . . . . . . . 31

(d) The Threat Assessment, Raid and use ofFlashbang Grenades. . . . . . . . 33

(e) Derrick Murray . . . . . . . . . . . 36

ii.

Qualified Immunity. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . 39

(a) Patently Obvious Constitutional Violation . . . . . . . . . . 40

(b) Closely Analogous Case Law. . . . . . . . . . . . . . . . . . . . .41

iii.

Monell Liability. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45



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TABLE OF AUTHORITIES

CASES

Abbott v. Sangamon County, 705 F.3d 706, 724 (7th Cir. 2013). . . . . . . . . . . . . . . . 27

Anderson v. Romero, 72 F.3d 518, 526-27 (7th Cir. 1995) . . . . . .. . . . . . . . . . . . . . 40

Baird v. Renbarger, 576 F.3d 340, 344 (7th Circ. 2009).. . . . . . . . .. . . . . . . . .. . . . 27

Bd. of City Commissioners of Bryan Cty., 520 U.S. 397, 409 (1997) . . . . . . . . . . . . 44

Boyd v. Benton County, 374 F.3d 773, 777-79 (9th Cir. 2004) . . . . . . . . . . . . . . . . . 42, 43

Chaklos v. Stevens, 560 F.3d 705, 716-17 (7th Cir. 2009). . . . . . . . . . . . . . . . . . . . .41

Estate of Escobedo v. Bender, 600 F.3d 770, 779 (7th Cir. 2010). . . . . . . . . . . . . . .39, 41, 42, 43

Estate of Sims ex rel. Sims v. Cnty, of Bureau, 506 F.3d 509, 515 (7th Cir. 2007). . .44

Estate of Smith v. Marasco, 318 F.3d 497, 515-18 (3d Cir. 2003). . . . . . . . . . .. . . ..42

Estate of Starks v. Enyart,5 F.3d 230, 234 (7th Cir.1993) . . . . . . . . . . . . . . . . . . . . .28

Eversole v. Steele, 59 F.3d 710, 716 (7th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . .44

Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997). .26

Graham v. Connor,490 U.S. 386, 399, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). . . .27, 28,

39, 40

Gonzalez v. City of Elgin, 578 F. 3d 526, 540 (7th Cir. 2009). . . . . . . . . . . . . . . . . . . . .39

Green v. Butler, 420 F.3d 689, 701 (7th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41

Holtz v. Hilliard, 1 F.Supp.2d 887, 889-890 (S.D.Ind. 1998). . . . . . . . . . . . . . . . . . . . . .26

Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002). . . . . . . .39, 40, 41

Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . .41

Lee v. Young, 533 F.3d 505, 512 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41

Medina v. Time Ins. Co., 3 F.Supp.2d 996, 997 (S.D.Ind.1998). . . . . . . . . . .. . . . . . . . ..26



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McDonald v. Haskins,966 F.2d 292, 292-93 (7th Cir.1992). . . . . . . . . . . . . . . . . . . 28

Molina ex rel. Molina v. Cooper, 325 F.3d 963, 973 (7th Cir. 2003). . . . . . . . . . . . . 43

Monell v. Dept of Soc. Servs., 436 U.S. 658, 691-94 (1978). . . . . . . . . . . . . . . . . . . 44

Pearson v. Callahan,129 S. Ct. 808, 815-16, 172 L. Ed. 2d 565 (2009) . . . . . . . . . . 39

Phillips v. Cmty. Ins. Corp.,678 F.3d 513, 520 at FN 4 (7th Cir. 2012) .. . . . . . . . . . 26, 27

Saucier v. Katz,533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001) . . . . . 39

Sarsha v. Sears, Roebuck & Company, 3 F.3d 1035, 1038 (7th Cir. 1993). . . . . . . . . 26

Shager v. Upjohn Company, 913 F.2d 398, 403 (7th Cir. 1990). . . . . . . . . . . . . . . . . 26

Siebert v. Severino, 256 F.3d 648, 654-55 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . 40

Terebesi v. Torreso, 2014 U.S. App. LEXIS 16133 (2d Cir. Aug. 21, 2014). . . . . . . . .43

Tolan v. Cotton, 572 U.S. ___ (2014), 2014 WL 1757856.. . . . . . . . . . . . . . . . . . . . . . 26

United States v. Jones, 214 F.3d 836, 837-38 (7th Cir. 2000). . . . . . . . . . . . . . . . . . . . .42

United States v. Morris, 349 F.3d 1009 at 1012 n.1 (7th Cir. 2003). . . . . . . . . . . . . . . .42

United States v. Myers, 106 F.3d 936, 940 (10th Cir.). . . . . . . . . . . . . . . . . . . . . . . . . . 43

Waldridge v. American Hoechst Corporation, 24 F.3d 918, 920 (7th Cir. 1994). . . . .. 26

Whitlock v. Brown,596 F.3d 406, 410 (7th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . .39

Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3 917, 929 (7th Circ. 2004).. . . . . . .44

Wragg v. Vill. of Thornton, 604 F.3d 464, 467 (7th Cir. 2010). . . . . . . . . . . . . . . . . . . . .44



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I. INTRODUCTION

On June 21, 2012, sixty eight (68) year old Louise Milan was upstairs folding laundry in

her home where she has lived since 1983, while her eighteen (18) year old adopted daughter,

Stephanie Milan, was downstairs watching a television program. Louise then heard an explosion

that was so violent she believed the world was coming to an end. Before she could react, she

heard a second explosion. She then started yelling for Stephanie and running downstairs. She

was accosted by members of the Evansville Police Department (EPD) Special Weapons and

Tactics (SWAT) team who pointed assault rifles at her and Stephanie.

Louise was ordered down to the floor of her home, at gunpoint, and handcuffed. Louise

watched as Stephanie was led in handcuffs out of her home. Louise was stood up and led out the

back door of her home because she could not be taken out through the front door because her

glass storm door had been smashed along with her large living room window and broken glass

was strewn everywhere. The door and window had been smashed so the SWAT team could

detonate two flash-bang grenades in her home.

Louise was taken out front of her home still in handcuffs, in front of her neighbors, and

while being filmed by a television news crew that had been invited to the raid by Chief Bolin as

a thank you for tipping the EPD. Louise was placed into a police car and questioned for at least

twenty (20) minutes. Louise was finally informed by an EPD detective that her home had been

raided because an anonymous person had used her open internet connection to post threats

against the EPD on an internet message board.

It would be determined, after minimal further investigative effort that should have been

done before the raid, that Derrick Murray (Murray), who has a criminal history of making such

threats against law enforcement and is well known to the Chief and EPD detectives, was the



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guilty party. In fact, Murray had been spotted by the EPD and its detectives prior to the raid on

Louises home, two doors down from her home while they were conducting surveillance prior to

the raid and was discussed as the person they believed who was ultimately responsible for the

posts before the raid on Louises home. Despite having this information and several other

important pieces, including that no one in the home was involved, the EPD ignored all of it and

went ahead with its military raid on her home, smashed their way into Milans home with their

assault rifles cocked and aimed, and detonated two flash-bang grenades in the process.

Importantly, when Murray was arrested, he was simply called and asked to come to EPD

headquarters no SWAT team, no flash-bang grenades, no guns aimed this man who

threatened to have high powered rifles and explosives was called to just come into the station.

Clearly, the EPD recognized their earlier actions were unwarranted.

Louise Milan has brought a Complaint that the Defendants have violated her rights as

protected by the 4th

Amendment of the United States Constitution specifically, the 4th

Amendments protections against unreasonable search and seizure and excessive force. The

Defendants have filed their Motion for Summary Judgment wherein they contend that their

actions were reasonable under the circumstances and they are entitled to qualified immunity,

which shields them from liability. Louise contends that there are genuine issues of fact in this

matter that must be resolved by a jury and the Defendants are not entitled to immunity for their

actions. As such, Defendants Motion for Summary Judgment must be denied.

II. STATEMENT OF GENUINE ISSUES OF FACT

A. Response to the Defendants Statement of Material Facts Not in Dispute

For ease of reference, Plaintiff repeats the disputed fact in italics with her response

immediately following.



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14. On June 21, 2012, EPD sent a subpoena to Topix, LLC, requesting the user information and

IP address for the three user names and Topix, LLC, provided information that all three user

names used the same IP address to make the posts. (Brown Depo., p. 31, lines 11-25; p. 33, lines

1-9; Brown Depo., Exhibit 11).

RESPONSE: Disputed. Topix.com representative, Do Kim (Kim), who was Detective

Evrards (Evrard) point of contact, gave Evrard the information for those user names. Kim,

after commenting that he watched the video for the raid on Louises home and it was scary

stuff, told Evrard that he needed to submit another subpoena for any other posts from those user

names because Multiple people could be using that same IP address so that may lead you to a

different, unrelated user. [Plaintiffs Exhibit 1, Email chain between Do Kim and Evrard]

Evrard responded Yes, we want all user names that were using that IP. Understand it may be

multiple people. In fact, nine (9) usernames were identified. [Plaintiffs Exhibit 1, Email chain

between Do Kim and Evrard]

15. With the IP address, EPD sent an emergency subpoena to Time Warner Cable, the internet

provider for the IP address, and Time Warner Cable provided information indicating that the

residential address associated with the IP address was 616 East Powell, Evansville, Indiana

47720 (the Residence). (Brown Depo., p. 26, lines 9-11; Brown Depo., Exhibit 3).

RESPONSE: Disputed. Insight identified Louise Milan as the resident at 616 E. Powell Avenue,

provided her phone number, and user name in addition to that she was the subscriber associated

with that IP address. [Plaintiffs Exhibit 2, Response Letter from Insight] Insight also specifically

stated We do not make any representations to the identity of the individual who actually used

the above IP address on the dates and times in question. If you require additional subscriber



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account information regarding the above individual, please let us know. [Plaintiffs Exhibit 2,

Response Letter from Insight]

16. Further investigation was necessary to determine if the person posting the threats from the

IP address was the actual Residence subscriber to the IP address or someone else. (Brown

Depo., p. 35, lines 6-9).

RESPONSE: Disputed. They did not do enough investigation to determine whether or not the

residents were even involved. Furthermore, Louises user name, [email protected],

did not match any of the user names known to the EPD as making the threats. [Plaintiffs Exhibit

2, Response Letter from Insight]

26. Both Anthony Milan, Sr., and Anthony Milan, Jr., visited the Residence occasionally.

(Stephanie Depo., p. 8, lines 12-24; Plaintiff Depo., p. 10, lines 13-16).

RESPONSE: Disputed. Anthony Milan, Sr. grew up in Louises home, but he has not lived there

since he was about eighteen (18) years old or 1988. When he came back to Evansville he would

sporadically stop by to say hello and then leave. [Plaintiffs Exhibit 3, Louise Milan Dep. at pg.

7] Louise recalled seeing Anthony Milan, Jr. when he was an infant and then she did not see him

for several years until he was an adult and she last saw him about three (3) years ago or 2010.

[Plaintiffs Exhibit 3, Louise Milan Dep. at pg. 8]

28. EPDs records management system for Anthony Milan, Sr., included the Residence as a

known location for Anthony Milan, Sr. (Bolin Depo., p. 43, lines 19-25; p. 44, lines 1-7; Bolin

Depo. Exhibit 5; Seibert Depo., p. 26; Pugh Affidavit, Exhibit 3, p. 5).

RESPONSE: Disputed. EPDs RMS report for Anthony Milan, Sr. had 616 E. Powell Ave.

listed as a location on June 27, 2008 and the address was entered by the Vanderburgh County

Sheriffs Department. [Plaintiffs Exhibit 4, Anthony Milan, Sr. RMS report]



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39. Detective Seibert provided information to the SWAT team concerning connections of Marc

Milan, Anthony Milan, Jr., and Anthony Milan, Sr., with the Residence and/or the East Powell

area. (Seibert Depo., p. 38).

RESPONSE: Disputed. Seibert did not know who Anthony Milan, Sr. or Anthony Milan, Jr.

were until the day of the raid on Louises home. [Plaintiffs Exhibit 5, Seibert Dep. at pg. 22]

Seibert was asked by Chief Bolin to associate persons with Louise Milans home or as he put it

I was asked to look and try to find something on 616 East Powell. [Plaintiffs Exhibit 5,

Seibert Dep. at pg. 26] He looked up Marc Milan who he believed hung out with Derrick

Murray at 604 E. Powell Ave., which he then associated with Anthony Milan Sr., and then

associated with Anthony Milan, Jr. based on their last names alone. However, the only tie that

Seibert had to any of the Milans being associated with 616 East Powell Ave. is that Marc Milan

had allegedly been seen on the 600 block of East Powell Avenue. [Plaintiffs Exhibit 5, Seibert

Dep. at pgs. 24-26] In fact, Marc Milan never visited Louises home and she did not even know

who he was. [Plaintiffs Exhibit 3, Louise Milan Dep. at pg. 10]

41. The threat assessment was completed on the Residence and the threat assessment score

required the use of EPDs SWAT team to execute the search warrant. (Pugh Affidavit, Exhibit 6).

44. Lt. Molinet completed the threat assessment and because of the degree of the threat, a

decision required use of the SWAT team. (Molinet Depo., pp. 26-27; Depo. Ex. 15)

RESPONSE: Disputed. For EPDs SWAT team to be deployed, Lt. Molinet has to approve the

use of SWAT and Chief Bolin is the ultimate decision-making authority for the EPD to deploy

its SWAT team. [Plaintiffs Exhibit 6, Molinet Dep. at pgs. 14-15; Plaintiffs Exhibit 7, After

Action Report] Lt. Molinet immediately started activating SWAT before completing the Threat

Assessment. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 22] Even with the Threat Assessment,



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Molinet and Chief Bolin could have decided not to use SWAT and/or not to use flashbang

grenades. [Plaintiffs Exhibit 6, Molinet Dep. at pgs. 68-69; Defendants Pugh Affidavit

Exhibit 7, Helmet Cam video] Chief Bolin, in his letter to Louise, admitted that there were other

tactics the EPD could have use. [Plaintiffs Exhibit 8, Bolin Letter dated July 2, 2012]

43. The decision to execute a search warrant on the Residence was an emergency situation based

upon the level of the threat both at the scene and what could happen afterwards if it was not

treated as an emergency situation. (Molinet Depo., p. 18)

RESPONSE: Disputed. This was not an emergency situation as the threats contained a date

certain of July 4

th

. [Defendants Pugh Affidavit Exhibit 1, Topix.com Posts] Moreover, the

EPD conducted four days of investigation prior to serving a search warrant on 604 E. Powell

Avenue where Derrick Murray Resided. [Plaintiffs Exhibit 9, Criminal Complaint and Affidavit

for Derrick Murray]

46. Lt. Molinet received information that possible suspects associated with the Residence were

Anthony Milan, Jr., Anthony Milan, Sr. and Marc Milan. (Molinet Depo., p. 29, lines 6-25, 30,

32; p. 39, lines 1-4).

RESPONSE: Disputed. The only thing Det. Brown told Lt. Molinet were the threats and that

they were posted on Topix.com. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 28] Det. Evrard or

Det. Seibert informed Lt. Molinet that Marc Milan, Anthony Milan, Sr., and Anthony Milan, Jr.

were possible suspects that were in Louises home and that all three stayed there. [Plaintiffs

Exhibit 6, Molinet Dep. at pgs. 29 & 31] None of the detectives told Molinet why they believed

that those men were suspects or in the home and Molinet did not bother to ask where the

detectives came up with this information. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 29] Molinet



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did not get the criminal histories for Marc Milan, Anthony Milan, Sr., and Anthony Milan, Jr.

until after he completed the Threat Assessment. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 46]

52. With the level of threat that existed and the potential danger to the officers, there was no way

the EPD would send an officer to walk up and just knock on the door of the Residence. (Molinet

Depo., p. 67, lines 24-25; p. 68, lines 1-6).

RESPONSE: Disputed. When 604 E. Powell Avenue was served with a search warrant as a part

of its investigation into the threats, SWAT did not breach the home, flash-bang grenades were

not used and Motor Patrol just went up and knocked on the door. [Plaintiffs Exhibit 6, Molinet

Dep. at pg. 77] During the investigation into Murray, on June 27, 2012, Cpt. Andy Chandler of

the EPD simply called Murray and spoke to him over the phone about his smart phones and his

ability to access the internet. [Plaintiffs Exhibit 9 at 30, Affidavit and Criminal Complaint of

Derrick Murray]

55. Chief Bolin knew SWAT was executing a search warrant at the Residence but did not know

what tactics or devices they would be using. (Bolin Depo., p. 89, lines 15-25). 73. Officer Gray

made the decision to use the distraction devices in executing the search warrant for the

Residence. (Gray Depo., pp. 26-28).

RESPONSE: Disputed. Chief Bolin denies that he is involved in the use of SWAT and he does

not have to authorize or sign off on the use of the SWAT team. [Plaintiffs Exhibit 10, Bolin

Dep. at pgs. 18-20] Chief Bolin testified that he was informed of and a part of the SWAT raid

for Louises home, but denies he was involved or authorized the use of SWAT in this matter.

[Plaintiffs Exhibit 10, Bolin Dep. at pgs. 19-20] SWAT Team Leader Gray affirmed Chief Bolin

is the final authority for SWAT team use and the fact that the SWAT memorandum after the raid

on Milans home states that Chief Bolin is the call out authorization. [Plaintiffs Exhibit 11,



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Gray Deposition at pg. 57; Plaintiffs Exhibit 7, After Action Report] In fact, Chief Bolin denied

ever seeing an After Action Report before and did not know what call out authorization meant.

[Plaintiffs Exhibit 10, Bolin Dep. at pgs. 20-21] Call out authorization means that Chief Bolin

authorizes the use of the SWAT team. [Plaintiffs Exhibit 11, Gray Dep. at pg. 57] Gray decided

to use flashbang grenades during the raid on Milans home and that decision was approved by

Molinet and Chief Bolin. [Plaintiffs Exhibit 11, Gray Dep. at pg. 26] Admittedly, Chief Bolin

knows absolutely nothing about the use of flashbang grenades to when they should be used,

against whom, if there is an EPD policy and procedure for using the grenades or if they can

violate a citizens Constitutional rights. [Plaintiffs Exhibit 10, Bolin Dep. at pgs. 22-24] He does

not know when it is appropriate or when it is not to use a flashbang grenade. [Plaintiffs Exhibit

10, Bolin Dep. at pg. 84]

57. The purpose of the search warrant was to enter the Residence and obtain electronic devices

to determine who was sending the threats. (Brown Depo., p. 35, lines 10-18). 69. The decision to

use the SWAT team was based upon the threat assessment and the totality of everything. (Molinet

Depo., p. 16, lines 14-25; p. 17, lines 1-3). 75. The use of the distraction devices was consistent

with EPD policy and given the threat matrix and the nature of the threats and surrounding

circumstances, the distraction devices gave EPD Officers a tactical advantage and an increased

measure of safety in entering the Residence because the distraction devices would disorient

persons and their decision making for a short period of time so that EPD Officers could safely

enter and secure persons therein. (Molinet Depo., p. 54-55; Gray Depo., p. 28).

RESPONSE: Disputed. They were used as excessive force. [Defendants Pugh Affidavit

Exhibit 7, Helmet Cam video] We are not going to let these types of people take over and have



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us scared in our own homes. [Sgt. Jason Cullum starting at the 8:35 mark of video manually

submitted in support Plaintiffs Exhibit 12]

59. Even though Detective Brown could tell there was an open wireless access point, he could

not specify from which house it originated. (Brown Depo., p. 36-38).

RESPONSE: While at the scene, Det. Evrard pulled out his smart phone and was able to

establish that there was an open internet connection at Louises home in less than 30 seconds.

[Plaintiffs Exhibit 17, Evrard Dep. at pgs. 46-47; Plaintiffs Exhibit 3, Louise Milan Dep. at pg.

31]

62. It was necessary to execute the search warrant and enter the Residence to check if there was

a router in the Residence and if it was unsecured. (Brown Depo., pp. 40-41). 63. Despite the

existence of an open wireless access point in the area, the EPD still had to enter the Residence to

get more evidence to determine who was actually responsible for posting the threats. (Brown

Depo., p. 52, lines 5-9). 64. Entry into the Residence was needed to help identify who actually

composed the threats and the issue of the equipment involved with those threats. (Brown Depo.,

p. 76, lines 13-25). 129. As a result of the search warrant and reviewing the electronic devices

from the Residence, including the router, it was learned that the router was not secure at the

time the threatening posts were made on Topix.com and that the threatening posts did not

originate from the electronic devices in the Residence. (Brown Depo., Exhibit 14).

RESPONSE: Disputed. Det. Browns case notes show that the EPD was able to positively

identify Murray as the guilty party by sending a subpoena one day after the raid on Louises

home - June 22, 2012, to Facebook for Murrays known accounts whereby they were able to

establish that he logged on to those accounts using Louises open connection and IP address



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physically obtaining her router was completely unnecessary. [Plaintiffs Exhibit 13 at pg. 3, Det.

Brown Investigation Notes]

80. The distraction devices cause persons to be temporarily paralyzed by the sound and light and

give EPD Officers a tactical advantage and a higher degree of safety. (Gray Depo., p. 28;

Molinet Depo., p. 54-55).

RESPONSE: Disputed. Flashbang grenades are considered a use of force by the EPD and the

EPD will use them when there is no suspect or imminent threat. [Plaintiffs Exhibit 11, Gray

Dep. at pgs. 34-35] A person can be injured, burned, concussed and possibly killed by a flash-

bang grenade. [Plaintiffs Exhibit 11, Gray Dep. at pgs. 33-34] Law enforcement does not want

to use flash-bang grenades around civilians because they could be injured by the flashbang.

[Plaintiffs Exhibit 6, Molinet Dep. at pg. 55] The EPD will detonate flash-bang grenades in

homes where children are known to be present. [Plaintiffs Exhibit 11, Gray Dep. at pgs. 25-26]

105. The distraction device that was placed at the front door was placed on the floor. (Molinet

Depo., p. 71).

RESPONSE: Disputed. SWAT team looked in Louises home a split second before they

smashed her door with a battering ram and the flash-bang grenade was thrown into Louises

living room. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 61] Moreover, they did not look for

suspects, innocent bystanders or detonate the flash-bang grenades in a manner to prevent injury

to innocent bystanders. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 61; Defendants Pugh Affidavit

Exhibit 7, Helmet Cam Video at 3:30] The EPDs own photograph of the burn mark from the

flash-bang grenade that was thrown through Louises front door clearly indicates the distance it

traveled and that it was not placed. [Plaintiffs Exhibit 14, EPD Photo of Burn]



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106. When the SWAT team entered the Residence, the EPD Officers instructed Stephanie to get

on the ground and she did. (Stephanie Depo., p. 16, lines 5-11; p. 18, lines 13-15). 108. The EPD

Officers were not disrespectful to Stephanie during the incident. (Stephanie Depo., p. 18, lines

13-23). 109. When the Officers removed Stephanie from the Residence, they were not

disrespectful in any way. (Stephanie Depo., p. 20, lines 3-7). 110. There was nothing any EPD

Officer did to Stephanie on the day of the incident that she felt was disrespectful or

unprofessional. (Stephanie Depo., p. 23, lines 12-17). 111. Despite the circumstances, EPD

Officers treated Stephanie with respect. (Stephanie Depo., p. 23, lines 18-21).

RESPONSE: Disputed. When the SWAT team raided the home, they had their assault rifles

pointed at Stephanie, to which she replied, Please dont hurt me. [Plaintiffs Exhibit 15,

Stephanie Dep. at pg. 25; Defendants Pugh Affidavit Exhibit 7, Helmet Cam Video at 3:50]

Stephanie was paraded in front of her neighbors while handcuffed and placed into a police car,

while a news crew invited by Chief Bolin filmed her and aired it on television that night.

[Plaintiffs Exhibit 12, News Crew Video of the Raid on Milans Home]

114. When Plaintiff heard the noise, she exited her bedroom and when she got to the landing, she

saw the EPD Officers who ordered her to get on the floor. (Plaintiff Depo., p. 15, lines 23-25).

RESPONSE: Disputed. After Louise heard the first flash-bang grenade detonate she thought

someone had hit the house and that the world has come to an end, she then heard the second

flash-bang grenade explosion and started screaming Stephanies name. [Plaintiffs Exhibit 3,

Louise Milan Dep. at pgs. 15-16] Louise came down the stairs, got to the landing and was

ordered at gun point to get on the floor. [Plaintiffs Exhibit 3, Louise Milan Dep. at pg. 15;

Defendants Pugh Affidavit Exhibit 7, Helmet Cam video]



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115. After Plaintiff got on the floor, an EPD Officer stated that they needed to let her get up and

they took her down the steps and sat her on a seat. (Plaintiff Depo., p. 17, lines 7-15).

RESPONSE: Disputed. Louise got on the floor and was shaking so badly that one of the officers

allowed her to get up. [Plaintiffs Exhibit 3, Louise Milan Dep. at pg. 17] As she started to get up

another officer yelled at her, We didnt tell you to move. [Plaintiffs Exhibit 3, Louise Milan

Dep. at pg. 17]

117. After SWAT had secured the Residence, Detective Brown removed Plaintiffs handcuffs and

had her sit on the edge of a squad car seat and explained to her the purpose of the search

warrant and investigation and showed her the threats. (Brown Depo., pp. 54-57).

RESPONSE: Disputed. While in the police car, Louise was told that someone had used a

website to threaten the Chief and his family and that is why the police had raided her home.

[Plaintiffs Exhibit 3, Milan Dep. at pg. 19] The detective questioning Louise told her that the

EPD believed that Louise and Stephanie did not have anything to do with the posting of the

threats. [Plaintiffs Exhibit 3, Milan Dep. at pg. 19-20]

122. EPD Officers treated Plaintiff with respect on the day of the incident. (Plaintiff Depo., p.

25, lines 18-21). 121. The distraction device did not cause injury to Plaintiff. (Plaintiff Depo., p.

21, line 25; p. 22, line 1). 124. During the incident, Plaintiff did not see any SWAT Officer acting

inappropriately. (Plaintiff Depo., p. 40, lines 9-16).

RESPONSE: Disputed. Louise had her home broken into, flash-bang grenades thrown into her

home, her and her daughter were ordered to the floor at gun point, and they were handcuffed and

paraded in the front of their neighbors while a news crew invited by Chief Bolin filmed them and

aired it that evening and several evenings thereafter. Louise was shaking so badly she thought

she was going to be physically ill. [Plaintiffs Exhibit 3, Louise Milan Dep. at pg. 22] Since the



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raid on her home, Louises anxiety has gone up, she was unable to sleep at all the next night after

the raid, every time she hears a noise she checks her front door and looks out the window and

since that day, she is afraid of the police. [Plaintiffs Exhibit 3, Louise Milan Dep. at pg. 22] She

is now afraid that the police may do something hurtful to her. [Plaintiffs Exhibit 3, Louise Milan

Dep. at pg. 23] For further example, one day Louise left to run errands and saw the police near

her home. She came back to her house because Stephanie was home alone and she was worried

about her because of the police being in the neighborhood. [Plaintiffs Exhibit 3, Louise Milan

Dep. at pgs. 22-23; Defendants Pugh Affidavit Exhibit 7, Helmet Cam video]

127. The SWAT team had fire extinguishers accessible at the time the search warrant was served

at the Residence. (Gray Depo., p. 53).

RESPONSE: Disputed. The fire extinguisher was in the SWAT armored vehicle and not

available to the officers in Louises home. [Plaintiffs Exhibit 6, Molinet Dep. at pgs. 69-70]

B. STATEMENT OF ADDITIONAL MATERIAL FACTS

1. Background

1. Louise has lived in her home at 616 E. Powell Ave. since 1983. [Plaintiffs Exhibit 3,

Louise Milan Dep. at pg. 3] Since 2010 Louise has lived in the home with her adopted daughters,

Stephanie and Shokara. [Plaintiffs Exhibit 3, Louise Milan Dep. at pg. 4] Stephanie was

eighteen (18) years old and a student at Signature School. Stephanie is less than five (5) feet tall

and Louise is also less than five (5) feet tall.

2. Notice of the Threats

2. Chief Bolin was made aware of the posts on Topix.com via phone call, he is not sure by

whom, and he was notified about the posts, by email, around 10:30 p.m. on June 20, 2012 by



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EPD Officer Michael Ward (Ward). [Plaintiffs Exhibit 16; Email from Michael Ward] EPD

was notified of the threats by an employee of a local news station.

3. Investigation

3. At around 8 a.m. on June 21, 2012, Det. Evrard sent an emergency subpoena to

Topix.com for the IP address associated with the user names, ihatecops, creeper and usarmy,

which are the user names that posted the threats on the Topix message board. At approximately

10:55 a.m. on June 21, 2012, Do Kim (Kim) from Topix responded with the IP address, which

was the same for all three user names. Det. Evrard did not ask for all usernames associated with

that IP address nor did he research the user names he was provided by Kim. In fact, he

communicated with Kim on June 22, 2012, to address the deficiencies of his previous subpoena.

[Plaintiffs Exhibit 1, Email Chain Between Do Kim and Evrard] Kim, after commenting that he

watched the video for the raid on Louises home and it was scary stuff, Kim told Evrard that

he needed to submit another subpoena for any other posts from those user names because

Multiple people could be using that same IP address so that may lead you to a different,

unrelated user. [Plaintiffs Exhibit 1, Email Chain Do Kim and Evrard] Evrard responded Yes,

we want all user names that were using that IP. Understand it may be multiple people. In fact,

nine (9) total usernames were identified. [Plaintiffs Exhibit 1, Email Chain Do Kim and Evrard]

Evrard understood that many people could be using Louises IP address to post the threats, but

he did no further investigation. Moreover, Det. Evrard did not research the user names who made

the threats prior to the raid on Louises home. [Plaintiffs Exhibit 17 - Evrard Dep. at pgs. 32-33]

4. Lt. Molinet became aware of the threats posted on Topix.com on June 21, 2012 at 9 a.m.

during a staff meeting. Present at the meeting were all of the EPD Lieutenants, several Captains,

the Assistant Chief and Chief Bolin. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 19] Notes were



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kept from this meeting; however, the Defendants cannot locate and have not produced the

meeting notes. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 20]

5. The EPD first learned of Louises home being associated with the IP address at or around

1:22 p.m. on June 21, 2012, when Det. Brown received a response to his emergency subpoena

from Insight Cable, which is now Time Warner Cable. [Plaintiffs Exhibit 18, Brown Dep. at

pgs. 33-34; Plaintiffs Exhibit 2, Response Letter from Insight] Det. Brown sent an emergency

subpoena to Insight for the physical address and name of the person associated with the IP

address. Insight responded with a faxed letter at 1:22 p.m. providing Louise Milans name,

address, phone number, IP address and user name [email protected]. [Plaintiffs

Exhibit 2, Response Letter from Insight] Insight also specifically stated We do not make any

representations to the identity of the individual who actually used the above IP address on the

dates and times in question. If you require additional subscriber account information regarding

the above individual, please let us know. [Plaintiffs Exhibit 2, Response Letter from Insight]

Det. Brown did not do any follow up with Insight or any further checking of the user names,

even though they did not match Louises username.

6. On June 21, 2012, sometime after receiving the letter from Insight, Det. Brown drove

down Louises street going about five (5) miles per hour and checked with his IPhone to see if

there were any open internet connections and there was an open connection in the middle of the

street in front of Louises home. [Plaintiffs Exhibit 18, Brown Dep. at pgs. 35-39] However, he

elected to do no further investigation to determine if the open connection was coming from her

home. He shared the fact there was an open internet connection with Lt. Molinet at the SWAT

briefing prior to the raid. [Plaintiffs Exhibit 18, Brown Dep. at pgs. 35-39]



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7. Det. Brown was fully aware that an unsecured router can be accessed from outside a

home. [Plaintiffs Exhibit 18, Brown Dep. at pg. 24] Det. Brown was aware that people log on

to and use other peoples open internet connections. [Plaintiffs Exhibit 18, Brown Dep. at pgs.

34-35] Similarly, Det. Evrard knew that it is easy for someone to hide the physical location of

their IP address through proxy servers. [Plaintiffs Exhibit 17, Evrard Dep. at pg. 20] It is not

uncommon for a person to have their router unsecured and it is easy to tell when a router is

unsecured. If a wireless router is unsecured, someone from outside of the physical location can

easily access the internet and router. [Plaintiffs Exhibit 17, Evrard Dep. at pgs. 21-22]

8. Det. Brown applied for a search warrant of Louises home. [Plaintiffs Exhibit 18, Brown

Dep. at pg. 25]. Det. Brown testified under oath that everything in his application for a search

warrant of Louises home was accurate. [Plaintiffs Exhibit 18, Brown Dep. at pg. 26] Det.

Brown also knows that an IP address alone is not enough probable cause for an arrest warrant.

[Plaintiffs Exhibit 18, Brown Dep. at pg. 28]

9. When Det. Brown completed his application for a search warrant, he was not aware that

Marc Milan, Anthony Milan Sr. or Anthony Milan Jr. were allegedly associated with Louises

residence. [Plaintiffs Exhibit 18, Brown Dep. at pg. 45] In his application/affidavit, Det. Brown

swore under oath that to connect onto the internet signal in Louises home, the computer device

had to be insidethe residence. [Plaintiffs Exhibit 18, Brown Dep. at pg. 6; Plaintiffs Exhibit 19,

Application for Search Warrant for 616 E. Powell Ave.] Det. Brown did not say the same and

actually made a distinction in the application for 604 E. Powell Avenue where Derrick Murray

resided. [Plaintiffs Exhibit 18, Brown Dep. at pgs. 46-50; Plaintiffs Exhibit 20, Application for

Search Warrant for 604 E. Powell Ave.]



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10. Det. Brown had the IP address, physical address and name for Louise Milan and knew

there was an unsecured router, yet he never followed up or bothered to contact Insight to

determine if the open router belonged to Louise because the SWAT team was going in anyway.

[Plaintiffs Exhibit 18, Brown Dep. at pgs. 79-80]

11. Det. Seibert was asked by Chief Bolin to associate persons with Louises home or as he

put it I was asked to look and try to find something on 616 East Powell. So, he looked up

Marc Milan who he believed hung out with Derrick Murray at 604 E. Powell Avenue. Nothing in

the EPDs RMS system shows Marc Milan ever lived at or visited 616 East Powell Avenue.

[Plaintiffs Exhibit 5, Seibert Dep. at pgs. 26-27; Plaintiffs Exhibit 21, Marc Milans RMS

report]

12. Next, Det. Seibert decided to associate Marc Milan with Anthony Milan Sr., and then to

Anthony Milan, Jr. However, the only tie that Det. Seibert had to any of the listed male Milans

being associated with 616 East Powell Avenue is the allegation that Marc Milan hung out with

Derrick Murray at 604 East Powell Avenue. [Plaintiffs Exhibit 5, Seibert Dep. at pgs. 24-26]

Det. Seibert did not know who Anthony Milan, Sr. or Anthony Milan, Jr. were prior to the day of

the raid on Louise Milans home. [Seibert Dep. at pg. 22]

13. Det. Seibert admitted that what made him tie Marc Milan to 616 East Powell over 604

East Powell was simply his last name. [Plaintiffs Exhibit 5, Seibert Dep. at pgs. 26-27] Chief

Bolin admits it is not proper to associate someone with an address based solely on their last

name. [Plaintiffs Exhibit 10, Bolin Dep. at pgs. 87-88]

14. Nothing in the EPDs RMS system stated Anthony Milan, Jr. ever lived at or was

associated with 616 East Powell Ave. prior to June 21, 2012. [Plaintiffs Exhibit 5, Seibert Dep.

at pg. 30; Plaintiffs Exhibit 22, Anthony Milan, Jr.s RMS Report] In fact, Anthony Milan, Sr.



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was not listed as Juniors father or parent in the EPDs RMS system. [Plaintiffs Exhibit 5,

Seibert Dep. at pg. 30; Plaintiffs Exhibit 22, Anthony Milan, Jr.s RMS report] Nevertheless,

Chief Bolin arbitrarily entered Louises home as Anthony Milan Jr.s known residence in the

EPDs RMS module on June 28, 2012. [Plaintiffs Exhibit 10, Bolin Dep. at pgs. 44-48;

Plaintiffs Exhibit 22, Anthony Milan Jr. RMS report] That entry was so spurious that there is

another entry six weeks later that listed his true address as on Ravenswood Drive in Evansville,

Indiana. [Plaintiffs Exhibit 22, Anthony Milan Jr. RMS report]

15. There was nothing in the EPDs information module associating Anthony Milan, Sr.,

with 616 E. Powel Avenue for about four years prior to the raid on Louises home. The only

entry for that address was performed by the Vanderburgh County Sheriffs Department on June

27, 2008. [Plaintiffs Exhibit 10, Bolin Dep. at pgs. 43-44; Plaintiffs Exhibit 4, Anthony Milan

Sr. RMS report]

16. Chief Bolin believes that Anthony Milan Sr. and Anthony Milan Jr. were associated with

Louises home or once lived there based on conversations he had after the raid on her home.

[Plaintiffs Exhibit 10, Bolin Dep. at pgs. 40-41]

17. There was surveillance on Milans residence for a brief period before the raid on her

home. [Plaintiffs Exhibit 10, Bolin Dep. at pg. 34] Derrick Murray, who has a criminal history

known to the EPD was spotted on the porch of a residence two doors down from Louises home

while the EPD was conducting surveillance of Louises home. In fact, that is why surveillance

was ended. [Plaintiffs Exhibit 10, Bolin Dep. at pgs. 35-37; Plaintiffs Exhibit 9, Murray

Criminal Complaint and Affidavit] Officer Kennedy, who performed the surveillance, informed

Molinet that he spotted Derrick Murray on a porch two doors down from Louises home. Murray

was known to Molinet as a thorn to the police department for a while. However, Molinet



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disregarded this information as irrelevant and no further investigation into Murray was

conducted at that time. [Plaintiffs Exhibit 6, Molinet Dep. at pgs. 32-34] Molinet let the SWAT

team know that Murray was spotted two doors down because he [Murray] may try something

stupid. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 51] Molinet was aware that Murray was the

leader of the LA Zombies, he had a prior conviction for intimidating a police officer and Murray

had sprayed 187 and an officers address on a garage. [Plaintiffs Exhibit 6, Molinet Dep. at pg.

69; Plaintiffs Exhibit 9, Criminal Complaint against Murray] Murray has a history of making

threats against EPD officers and has been convicted for the same and was known to be living at

his mothers residence at 604 E. Powell Avenue two doors down from Louises Home.

[Plaintiffs Exhibit 10, Bolin Dep. at pg. 69-70; Plaintiffs Exhibit 13, Brown Investigation

Notes; Plaintiffs Exhibit 9, Criminal Complaint against Murray] This information was shared

during the SWAT team briefing and they still decided to go into Louises home. [Plaintiffs

Exhibit 18, Brown Dep. at pgs. 50-51, 62; Plaintiffs Exhibit 13, Det. Browns Investigation

Notes; Plaintiffs Exhibit 10, Bolin Dep. at pg. 69-70; Plaintiffs Exhibit 9, Criminal Complaint

against Murray]

18. Molinet spoke with Kennedy who conducted the surveillance on Louises home.

Kennedy told Molinet the only person he saw come or go from the home was a black woman

(Stephanie Milan) and that he never saw Marc Milan, Anthony Milan Sr., Anthony Milan Jr. or

any male suspect. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 32] However, the EPD believed

Stephanie fit the description of someone who might be dating one of the suspects. There is no

basis for this assumption.

19. Det. Seibert was fully aware of Murrays past criminal activities, including his

intimidation of police officers, and his status as leader of the LA Zombies. However, despite the



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fact that Murray was spotted two doors down during surveillance, no one at the EPD asked Det.

Seibert about or sought information about Murray and he did not supply any information about

Murray. [Plaintiffs Exhibit 5, Seibert Dep. at pgs. 35-36]

20. According to Molinet, it did not matter that Murray had been spotted because SWAT was

going to hit Louises home no matter what. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 53]

4. Threat Assessment and Swat Activation

21. Lt. Molinet was told by either Det. Brown or Det. Evrard that the threats originated from

a computer inside Louise Milans home. [Plaintiffs Exhibit 6, Molinet Dep. at pgs. 21] Lt.

Molinet immediately activated SWAT. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 22]

22. Lt. Molinet completed the SWAT threat assessment while making phone calls and he did

not rely on any documents while he was completing the threat assessment. [Plaintiffs Exhibit 6,

Molinet Dep. at pgs. 23 & 26] Lt. Molinet recalls about ten (10) phone calls he had with Det.

Brown, Det. Evrard and Det. Seibert over a one hour time span to complete the threat

assessment. [Plaintiffs Exhibit 6, Molinet Dep. at pgs. 27-28; Plaintiffs Exhibit 23, Threat

Assessment]

23. The only thing Det. Brown told Lt. Molinet were the threats and that they were posted on

Topix.com. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 28] Det. Evrard or Det. Seibert informed

Lt. Molinet that Marc Milan, Anthony Milan, Sr., and Anthony Milan, Jr. were possible suspects

that were in Louise Milans home and that all three stayed there. [Plaintiffs Exhibit 6, Molinet

Dep. at pgs. 29 & 31-32] None of the detectives told Molinet why they believed that those men

were suspects or in the home and Molinet did not bother to ask where the detectives came up

with this information. [Plaintiffs Exhibit 6, Molinet Dep. at pgs. 29-32]



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24. The Threat Assessment document was completed by Molinet marking boxes and a point

value is assigned by the program. The Threat Assessment is for a search warrant of 616 E.

Powell Avenue and not an arrest warrant in fact, no suspect is listed on the Threat Assessment.

[Plaintiffs Exhibit 23, Threat Assessment] Nonetheless, Molinet completed the Threat

Assessment based on Marc Milan, Anthony Milan, Sr., and Anthony Milan, Jr. being suspects.

[Plaintiffs Exhibit 6, Molinet Dep. at pgs. 36-37; Plaintiffs Exhibit 23, Threat Assessment]

25. Molinet checked known to use propensity for violence, assault and resisting arrest

under the suspect assessment on the Threat Assessment even though this was a search warrant.

[Plaintiffs Exhibit 6, Molinet Dep. at pgs. 38; Plaintiffs Exhibit 23, Threat Assessment] He

checked resisting arrest even though it was a search warrant and Marc Milan, Anthony Milan,

Sr., and Anthony Milan, Jr. have no history of resisting arrest because he wanted his SWAT team

members to believe any suspects at 616 E. Powell Avenue would resist arrest and the threat

assessment would assign the necessary points. [Plaintiffs Exhibit 6, Molinet Dep. at pgs. 38;

Plaintiffs Exhibit 23, Threat Assessment]

26. Molinet did not get the criminal histories for Marc Milan, Anthony Milan, Sr., and

Anthony Milan, Jr. until after he completed the Threat Assessment. [Plaintiffs Exhibit 6,

Molinet Dep. at pg. 46]

27. Under Offense Assessment Molinet checked that the offense was a felony, it was a

violent felony and that a weapon was used in the offense. [Plaintiffs Exhibit 23, Threat

Assessment] Again, this Threat Assessment was completed for a search warrant, not an arrest

warrant, so how or why Molinet would list these offenses is beyond reason. Moreover, the only

offense committed by anyone at this point were threats made on the internet internet threats

cannot be considered violent and most certainly were not completed with a weapon.



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Nonetheless, Molinet went ahead and checked, rifle-full auto, handgun and explosives in the

Weapon Assessment section of the Threat Assessment. [Plaintiffs Exhibit 23, Threat

Assessment]

28. Under site assessment, Molinet listed unknown for whether children or the elderly were

present. [Plaintiffs Exhibit 23, Threat Assessment] Despite the fact that Kennedy spotted

Stephanie, who is under 5 feet tall. [Plaintiffs Exhibit 6, Molinet Dep. at pgs. 64 & 66] Molinet

believed Stephanie was 13 years old. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 66] Stephanie

appeared to be 15 years old to Gray. [Plaintiffs Exhibit 11, Gray Dep. at pg. 30] Moreover,

Kennedy informed Molinet that he saw childrens bicycles in the driveway of Louises home

during his surveillance. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 63; Defendants Pugh

Affidavit Exhibit 7, Helmet Cam Video at 8:57]

29. Due to the short time SWAT planned the raid on Louises home, a higher threat value

was assigned under operational planning. [Plaintiffs Exhibit 6, Molinet Dep. at pgs. 44-45;

Plaintiffs Exhibit 23, Threat Assessment]

30. Gray, the SWAT team commander for the raid on Louise Milans home, does not recall

whether or not he saw the Threat Assessment for her home prior to the SWAT raid. [Plaintiffs

Exhibit 11, Gray Dep. at pg. 20] Gray decided to use flashbang grenades during the raid on

Milans home and that decision was approved by Molinet and Chief Bolin. [Plaintiffs Exhibit

11, Gray Dep. at pg. 26] Gray believes that EPD SWAT can use flashbang grenades even if there

is no suspect and no imminent danger is observed. [Plaintiffs Exhibit 11, Gray Dep. at pg. 35] If

there is missing information or intelligence for serving a search warrant, Gray would err on the

side of using flashbang grenades. [Plaintiffs Exhibit 11, Gray Dep. at pg. 32]



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31. Gray recalls that none of the detectives told him that any of the male Milans were spotted

at Louises home, but the detectives did tell him that Murray was spotted a few doors down.

[Plaintiffs Exhibit 11, Gray Dep. at pgs. 29]

32. Gray recalls from thepre-raid briefingthat the detectives and the EPD believed Derrick

Murray was ultimately responsible for the threats. [Plaintiffs Exhibit 11, Gray Dep. at pg. 39]

Nonetheless, the raid on Louises home moved forward.

5. The SWAT Raid

34. After looking through the glass storm door for what Lt. Molinet described as a split

second, Officers Kacey Ross and Alan Gansman broke Louises living room window and

detonated a flashbang grenade, then the SWAT team smashed Louises storm door an Officer

Shawn Chapman threw in the second flashbang grenade through Milans front door. Then the

SWAT team rushed in with their military assault rifles pointed at Louise and Stephanie, ordered

them to the floor at gunpoint and handcuffed them. [Plaintiffs Exhibit 11, Gray Dep. at pgs. 42-

43; Plaintiffs Exhibit 6, Molinet Dep. at pg. 61; Plaintiffs Exhibit 7 After Action Report;

Plaintiffs Exhibit 24, Picture of Dry Erase Board; Defendants Pugh Affidavit Exhibit 7,

Helmet Cam Video] Prior to entering Milans home, the SWAT team did not observe any

weapons, no bombs, no barricades and no suspects. [Plaintiffs Exhibit 11, Gray Dep. at pg. 51]

The SWAT team did not observe any imminent threat or danger prior to breaking into Louises

home and detonating flashbang grenades, nor did they look for any innocent bystanders to avoid

injuring them with a flashbang grenade. [Plaintiffs Exhibit 11, Gray Dep. at pgs. 52-53;

Defendants Pugh Affidavit Exhibit 7, Helmet Cam Video] Gray admitted that he would not be

happy if the SWAT team raided his grandmothers home and used flashbang grenades when she

had done nothing wrong. [Plaintiffs Exhibit 11, Gray Dep. at pgs. 55-56]



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35. The SWAT team employed its knock and announce tactic that is really just a

distraction technique. There is approximately 4 seconds between the first knock by the SWAT

team, Louises window being smashed and the first flashbang grenade being thrown in and 6

seconds from the first knock and the ram hitting Louises front door and the second flashbang

grenade being thrown in her living room. [Defendants Pugh Affidavit Exhibit 7, Helmet Cam

Video at 3:31 to 3:37] The only purpose knock and announce would serve is to draw someone

in the home nearer to the flashbang grenades.

36. Chief Bolin was at the raid on Milans home. [Plaintiffs Exhibit 10, Bolin Dep. at pg.

41] Chief Bolin condones and approves of the SWAT raid on Louise Milans home and believes

the use of force was appropriate. [Plaintiffs Exhibit 10, Bolin Dep. at pg. 71-74]

37. Chief Bolin invited a news crew of civilians along for the SWAT raid as a thank you for

the news station tipping them off about the postings on Topix.com. [Plaintiffs Exhibit 10, Bolin

Dep. at pgs. 88-90] He invited the civilians even though the EPD claims to have believed there

may be a person at Louises home with high powered rifles and explosives. Chief Bolin believed

the news crew would be safe about a block down the street. [Plaintiffs Exhibit 10, Bolin Dep. at

pgs. 88-90]

38. Chief Bolin admitted that it would be embarrassing to be handcuffed and placed in a

squad car in front of your neighbors and with the news crew filming. [Plaintiffs Exhibit 10,

Bolin Dep. at pg. 91 & 102; Plaintiffs Exhibit 8, Chief Bolin letter dated July 2, 2012] Chief

Bolin admits that what happened to Louise was in no way her fault. [Plaintiffs Exhibit 10, Bolin

Dep. at pg. 111]

39. Chief Bolin drafted and sent a letter to Louise Milan on July 2, 2012, stating how if they

would have known her the EPD could have done things differently and apologizing for the



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embarrassment. [Plaintiffs Exhibit 8, Chief Bolin letter dated July 2, 2012] At his deposition,

Chief Bolin testified that he was not sincere about doing things differently and he only wrote that

because Louise Milans ex-husband, Ira Milan, asked him to. [Plaintiffs Exhibit 10, Bolin Dep.

at pg. 96-102; Plaintiffs Exhibit 8 Chief Bolin letter dated July 2, 2012]

6. Derrick Murray

40. Derrick Murray was spotted two doors down at 604 E. Powell Avenue during the pre-raid

surveillance on Louises home and during the raid on Louises home. [Plaintiffs Exhibit 17,

Evrard Dep. At pg. 48; Plaintiffs Exhibit 13, Brown Investigation Notes; Plaintiffs Exhibit 9,

Murray Criminal Complaint and Affidavit]

41. Det. Brown and the EPD did four (4) days of investigation before going into Murrays

home with a search warrant. [Plaintiffs Exhibit 18, Brown Dep. at pgs. 68-69; Plaintiffs Exhibit

10, Bolin Dep. at pg. 103-105; Plaintiffs Exhibit 17, Evrard Dep. At pg. 50; Plaintiffs Exhibit

20, Application for Search Warrant for 604 E. Powell Avenue] The SWAT team did not breach

Murrays residence or use flashbang grenades. [Plaintiffs Exhibit 18, Brown Dep. at pgs. 69-70;

Plaintiffs Exhibit 10, Bolin Dep. at pg. 103-105; Plaintiffs Exhibit 17, Evrard Dep. At pg. 50]

When 604 E. Powell Avenue, Murrays home, was served with a search warrant, Motor Patrol

just went up and knocked on the door. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 77]

42. On June 28, 2012, three days after executing the search warrant on this known gang

leader, convict, who threatened to have heavy weaponry and explosives, who they knew made

the threats; EPD Captain Andy Chandler called Murray to discuss the EPDs investigation with

him. [Plaintiffs Exhibit 9 at 30, Affidavit and Criminal Complaint for Murray]



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43. Det. Seibert was present for the arrest of Murray. The FBI simply called Murray from

EPD headquarters and had him come to this station where they arrested him. [Plaintiffs Exhibit

5, Seibert Dep. at pg. 48]

III. ARGUMENT

A. STANDARD ON SUMMARY JUDGMENT

The issue on summary judgment "is whether a rational trier of fact could reasonably find

for the party opposing the motion with respect to the particular issue." Medina v. Time Ins. Co., 3

F.Supp.2d 996, 997 (S.D.Ind.1998);Holtz v. Hilliard, 1 F.Supp.2d 887, 889-890 (S.D.Ind. 1998).

It is well settled in this Circuit that "[s]ummary judgment is appropriate only when the materials

before the court demonstrate that there are no genuine issues of material fact and the moving

party is entitled to judgment as a matter of law." Sarsha v. Sears, Roebuck & Company, 3 F.3d

1035, 1038 (7th Cir. 1993) (emphasis added). Summary judgment was not designed to be a

"paper trial." Waldridge v. American Hoechst Corporation, 24 F.3d 918, 920 (7th Cir. 1994).

Nor is it a substitute for a trial on the merits. Shager v. Upjohn Company, 913 F.2d 398, 403 (7th

Cir. 1990). The Courts role does not include weighing the evidence, determining credibility

issues, or resolving swearing contests. Giannopoulos v. Brach & Brock Confections, Inc., 109

F.3d 406, 410 (7th Cir. 1997) (and cases cited therein). Instead, resolving inferences in the light

most favorable to the nonmoving party, it is to determine whether the evidence reveals any

genuine issue of material fact. Id. If so, the case must go to the jury. The Supreme Court has

recently reemphasized the importance of resolving inferences in the light most favorable to the

nonmoving party. Tolan v. Cotton, 572 U.S. ___ (2014), 2014 WL 1757856.

The Seventh Circuit holds that summary judgment is frequently inappropriate in

excessive-force cases. Phillips v. Cmty. Ins. Corp.,678 F.3d 513, 520 at FN 4 (7th Cir. 2012).



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B. MILANS 42U.S.C.1983CLAIMS FOR UNREASONABLE SEARCH AND SEIZURE

AND EXCESSIVE USE.

i. Unreasonable Search and Seizure and Excessive Use of Force

The Defendants argue that they acted reasonably and with the proper use of force given

the information they had and circumstances at the time. Defendants attempt to place the focus of

Milans Complaint on the use of the flashbang grenades only. That focus is misplaced. Rather,

the Defendants violated the protections of the 4thAmendment with the defective search warrant,

investigative malfeasance, using the SWAT team to raid and smash their way into Milans home

(without adequate warning), the use of flashbang grenades during the raid and how the flashbang

grenades were deployed all violated Louise Milans rights as protected by the 4th

Amendment of

the United States Constitution.

When assessing whether a constitutional violation has occurred, "[t]he Fourth

Amendment inquiry is one of `objective reasonableness' under the circumstances." Graham v.

Connor,490 U.S. 386, 399, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). To determine whether

the force used to effect a particular seizure is reasonable, we balance the nature and quality of the

intrusion on the individual's rights against the "countervailing governmental interests at stake."

Grahamat 395, 109 S. Ct. 1865. The reasonableness of the force used depends on the totality of

the facts and circumstances known to the officer at the time the force is applied. Garner, 471

U.S. at 8-9; Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 519 (7th Cir. 2012). It is an objective

inquiry, the dispositive question being "'whether, in light of the facts and circumstances that

confronted the officer (and not 20/20 hindsight), the officer behaved in an objectively reasonable

manner,'" Abbott v. Sangamon County, 705 F.3d 706, 724 (7th Cir. 2013) internal citations

omitted. Moreover, Louise need not show actual physical injury to sustain an excessive force

claim.Baird v. Renbarger, 576 F.3d 340, 344 (7th Circ. 2009).



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Factors to consider in making a determination of whether the amount of force used to

effectuate a seizure is reasonable include (1) the severity of the crime at issue, (2) whether the

suspect poses an immediate threat to the safety of the officers or others, and (3) whether he

actively is resisting arrest or attempting to evade arrest by flight. Graham at 397, 109 S. Ct.

1865. Other factors include whether the individual was under arrest or suspected of committing a

crime, was armed, or was interfering or attempting to interfere with the officer's execution of his

or her duties. McDonald v. Haskins, 966 F.2d 292, 292-93 (7th Cir.1992). In the end, the

excessive force inquiry looks to whether the force used to seize the suspect was excessive in

relation to the danger he posedto the community or to the arresting officersif left

unattended. Id. at 294; see also Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir.1993)

(finding that the amount of force that is constitutionally permitted to execute a seizure decreases

with the threat of danger posed by the individual being seized).

The nature and quality of the intrusion into Louises rights does not get much higher.

There is really no more sacred place than ones home and the rights expected therein. There may

be no greater of an intrusion into ones home than a military-style raid that bashes your door

down and throws in bombs. As such, the Defendants need to demonstrate a high countervailing

interest at stake.

Here, there was no suspect actively attempting to evade or resist arrest, there was no

armed suspect and no one interfering or attempting to interfere with the execution of an officers

duties. Therefore, the only factors under consideration are (1) the severity of the crime at issue;

and, (2) whether the suspect poses an immediate threat to the safety of the officers or others. To

properly evaluate these factors, an analysis must be performed of what were the EPDs goals,

what they knew, should have known or chose to ignore, the completeness of their investigation



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(or lack thereof), what alleged crime was at issue, the imminent threat present, and the use and

deployment of the flashbang grenades.

(a)Severity of the Crime at Issue

On the evening of June 20, 2012, an anonymous person posted threats directed at the

EPD on an internet message board, Topix.com. People post threats, videos, pictures and

rambling manifestos on the internet every second of every day. Even Sgt. Gray, who headed the

SWAT team raid on Louises home acknowledged that internet threats are not credible because

people say stupid things on the internet all of the time. [Plaintiffs Exhibit 11, Gray Dep. at pg.

20] The EPD labeled these threats as Intimidation Against Law Enforcement Officers.

[Plaintiffs Exhibit 19, Application for Search Warrant for 616 E. Powell Ave.] These threats

were not made directly to anyone in law enforcement and would not technically fall within

Indianas Intimidation statute. In fact the EPD was only made aware of the threats by a phone

call to Chief Bolin and a local television news channel employee. Nonetheless, the EPD reacted

immediately.

Importantly, the threats contained a date certain for the threats July 4 th. Therefore, the

EPD had at least thirteen (13) days to carry out and complete an investigation. In fact, the EPD

took several days before serving a search warrant on Murrays residence. At the end of the day,

the EPD categorized the online posts as Intimidation against Law Enforcement, which is

essentially an investigation into a D Felony that was posted on the internet.

(b)

Whether the Suspect Poses an Immediate Threat to theSafety of the Officers or Others

At the outset, the warrant executed on Louises home was a search warrant, not an arrest

warrant. There was no suspect for the threats at the time of the execution of the warrant, other

than Murray. Det. Seibert was instructed by Chief Bolin to go out and find something on 616 E.



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Powell Avenue. The best he could come up with was Marc Milan, who he believed hung out

with Murray at 604 E. Powell Avenue two doors down from Louises home. Det. Seibert

decided to associate Marc Milan with Louises home based solely on his last name, which Chief

Bolin acknowledges is completely improper. There is good reason that such reckless

assumptions are improper, because Louise did not even know who Marc Milan was and he has

never been to her home. [Plaintiffs Exhibit 3, Louise Milan Dep. at pg. 10] Finally, in his letter

to Louise explaining the EPDs action, Chief Bolin claimed that the EPD looked into its records

for anyone associated with her address and it showed Anthony Milan, Sr. and Anthony Milan, Jr.

There is no mention of Marc Milan whatsoever in Chief Bolins letter.

Det. Seibert then decided to associate Marc Milan with Anthony Milan, Sr. based on their

last names. Anthony Milan, Sr. is Louises step-son, but he has not lived in her home since he

was eighteen (18) years old, which was 1988. In fact, he only returned to Evansville recently.

616 E. Powell Avenue was listed as a location on June 27, 2008, by the Vanderburgh County

Sheriffs Department and his known address as of September 2012 was on SE Second Street in

Evansville, Indiana.

Det. Seibert then decided to arbitrarily link Anthony Milan, Jr. to Louises address based

solely on Anthony Milan Sr. There is nothing in the EPDs system or files listing Louises home

as an address or location for Anthony Milan, Jr.1The only entry that now exists is an entry for

June 28, 2012, that lists Louises home as his address this was inexplicably entered by Chief

Bolin himself seven days after the SWAT raid on her home. That entry was so disingenuous, his

known address was changed in the EPDs RMS system seven weeks later. Moreover, Anthony

1Defendants have entered into evidence pictures of Anthony Milan, Jr. that he posted on his Facebook account of

him holding what appears to be a gun. Those pictures were posted on June 4, 2012, and the EPD was taking no

action against him based on those photos. Moreover, those photos are irrelevant because there was nothing in any of

the EPDs records associating Anthony Milan, Jr. with Louises home.



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Milan, Jr. was not allowed at Louises home by Stephanie and had not been to Louises home in

over three (3) years - 2010.

The EPD conducted surveillance of less than two (2) hours on Louises home prior to the

SWAT raid. The only person that was seen coming to and from the house was Stephanie. The

only other person spotted of relevance was Murray, who was spotted two (2) doors down on his

mothers porch. In fact, Murrays presence is why surveillance was ended.

The only actual evidence that the EPD had of any suspects was Louise who was listed as

the owner of the router/IP address by Insight and as the resident of the home and Stephanie who

was spotted by surveillance. There was no credible evidence that any of the male Milans resided

at or had been at Louises home in years or that they were in any way involved with the threats.

Yet, the EPD wants us to believe that these were the dangerous suspects that they had reason to

believe were in Louises home such that their actions should be considered reasonable. We

believe that a trier of fact could find the EPDs belief unreasonable.

(c)The Search Warrant and Investigation

The investigation or lack thereof, was handled by Det. Brown and Det. Evrard who were

a part of the EPD and FBIs joint cybercrimes taskforce. Concomitant with their assignments,

one would expect them to be proficient in computers, internet, and how those systems are

connected. Det. Brown retrieved Louises name, IP address, physical address, phone number

and username from Insight, which her user name was [email protected]. Det.

Brown ignored Insights warning that Louise may not be the person actually using the IP address

and declined Insights offer to provide additional information.

For his part, Det. Evrard communicated with Do Kim at Topix about the usernames and

the associated IP address. Det. Evrard did not include in his subpoena or ask the simple question

2The usernames that made the posts were ihatecops, creeper and usarmy.



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of all usernames associated with Louises IP address. Kim, after commenting that he watched the

video for the raid on Louises home and it was scary stuff, told Evrard that he needed to

submit another subpoena for any other posts from those user names because Multiple people

could be using that same IP address so that may lead you to a different, unrelated user.

[Plaintiffs Exhibit 1, Email chain between Do Kim and Evrard] Evrard responded Yes, we

want all user names that were using that IP. Understand it may be multiple people. [Plaintiffs

Exhibit 1, Email chain between Do Kim and Evrard] The Defendants have proffered that Det.

Evrard, who was a member of the cybercrimes taskforce, performed a diligent investigation.

Based on the facts, he did not.

During their minimal investigation, Det. Brown drove down Louises street and realized

there was an open internet connection when he was in the middle of the street, which is directly

in front of Louises home. He did not bother to get out of his car to further investigate the open

internet connection because, as he put it, SWAT was going in that house no matter what.

[Plaintiffs Exhibit 18, Brown Dep. at pg. 80] Det. Brown also testified that he could not discern

that it was Louises internet connection that was open. However, Det. Evrard was able to

establish that it was her connection on the spot and in less than thirty seconds. Additionally, Det.

Brown ignored the warnings from Insight, swore in his Affidavit for a Search Warrant that the

connection to her open internet could only be made inside the house and did not pursue

additional investigation because, as he put it, SWAT was going in that house no matter what.

[Plaintiffs Exhibit 11, Brown Dep. at pg. 80]

Finally and importantly, the Defendants claim that they had to go into Louises home to

get her router in order to further their investigation to identify the actual person who posted the

threats. Nothing could be further from the truth. Louises router would not and did not provide



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the EPD any information that they did not already have. Det. Browns investigation notes show

that they were able to positively identify Murray as the guilty party by sending a subpoena one

day after the raid on Louises home on June 22, 2012, to Facebook for Murrays known accounts

whereby they were able to establish that he logged on to those accounts using Louises open

connection and IP address. The EPD and Det. Brown were in possession of Louises IP address

before they raided her home. [Plaintiffs Exhibit 13, Det. Brown Investigation Notes at pg. 3;

Plaintiffs Exhibit 9 at 21, Affidavit and Criminal Complaint for Murray] Therefore, physically

obtaining her router was completely unnecessary.

The Defendants argue that they acted reasonably based on the information it had at the

time. The Defendants facts that are in dispute and the Plaintiffs additional material facts

indicate that the EPDs investigation was incredibly deficient, hurried and turned a blind eye to

several important facts, which led to unreasonable and excessive force being used against Louise

Milan. Defendants actions should not be deemed reasonable nor should they escape liability

due to their own faulty and intentionally hurried investigation.

(d)The Threat Assessment, Raid and Use of Flashbang

Grenades

There is an old adage when it comes to computer programs You put garbage in, you

get garbage out. That is exactly what happened with the Threat Assessment for Louises home.

As stated in the Additional Material Facts section 4, numbered facts 22-29, Molinet completed

the threat assessment as an arrest warrant and checked boxes and factors for non-existent

suspects, based on non-existent criminal histories and non-existent crimes. Lt. Molinet filled out

this document that allegedly dictates the level of force used by the SWAT team by taking phone3

calls and reviewing no documents whatsoever. Lt. Molinet admitted that he did not have the

3Molinet estimates he engaged in at least one hundred (100) phone calls related to activating SWAT while

completing the Threat Assessment.



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criminal histories of any alleged suspects until after he completed the Threat Assessment. Lt.

Molinet further admitted that he checked certain crimes like resisting arrest and ignored

others because he wanted the SWAT team members to believe that any suspects would resist

arrest. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 38] Lt. Molinet haphazardly and without any

reliable information checked the boxes for the Threat Assessment that in turn spat out an

egregiously large threat number garbage in and garbage out.

Shockingly, SWAT Team Leader Gray did not see the Threat Assessment prior to the

raid on Louises home. Admittedly, the Threat Assessment did not matter in the SWAT teams

calculus of the situation because Lt. Molinet knew they were going to hit Louises home no

matter what. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 53] This is supported by Det. Brown who

knew that SWAT was going into Louises home regardless. [Plaintiffs Exhibit 18, Brown Dep.

at pg. 80]

Det. Siebert recalls having worked perimeter security for the SWAT team for the service

of five (5) to ten (10) search warrantsduring his tenure. Each and every time the SWAT team

has detonated flashbang grenades. He recalls most of the search warrants being for people with

violent criminal histories or there were known firearms in the residence. [Plaintiffs Exhibit 5,

Seibert Dep. at pg. 49] Ignoring the disturbing fact that EPDs SWAT team uses flashbang

grenades every time it serves a search warrant, there were no known people with criminal

histories inside Louises home nor were there any known firearms in the residence.

Not only was the Defendants use of flashbang grenades a violation of the 4

th

Amendment, how they deployed the grenades also violated the 4th

Amendment. SWAT Team

Leader Gray acknowledged that the if the SWAT team has insufficient or missing information

they will err on the side of using flashbang grenades and will even use them if children are



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present. For the raid on Louises home, the SWAT team employed its knock and announce

tactic that is really just a distraction technique. There are approximately four (4) seconds

between the first knock by the SWAT team and her living room window being smashed4and the

first flashbang grenade being detonated. [Defendants Pugh Affidavit Exhibit 7, Helmet Cam

Video at 3:31 to 3:35] There is approximately six (6) seconds between the knock and the ram

smashing her door and detonation of the second flashbang grenade. [Defendants Pugh Affidavit

Exhibit 7, Helmet Cam Video at 3:31 to 3:37] The only purpose knock and announce would

serve is to draw, Stephanie and Louise, who were innocent and in their home, nearer to the

flashbang grenades.

Lt. Molinet admitted and the helmet cam video shows that the SWAT team only looked

in Louises home for a split second. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 61] They did

not check for suspects, they did not look for innocent bystanders. [Defendants Pugh Affidavit

Exhibit 7, Helmet Cam Video at 3:31 to 3:37] They smashed the window and door and detonated

two flashbang grenades within six (6) seconds, at most. The Defendants attempt to argue that

they checked for innocents and placed the second flashbang grenade on the floor implying

that it was in a safe manner. The visual evidence shows something much different. The helmet

cam video shows that they did not look for any alleged suspects or innocents and the flashbang

grenade was thrown through the front door. Moreover, an EPD picture taken of Louises living

room shows the burn mark5from where the flashbang grenade landed and its distance from the

front door. [Plaintiffs Exhibit 14, EPD Photo of Burn Mark] The photo shows that the flashbang

grenade landed almost entirely across Louises living room from the front door, this distance is

4The miniscule time period between the SWAT team knocking and smashing the living room window and ramming

the front door is a violation of the 4th

Amendment because adequate time was not provided for anyone inside to

respond.5Neither Lt. Molinet or SWAT Team Leader Gray were able to adequately explain why flashbang grenades would

be used in a home where they believed there might be explosives.



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not indicative of an object that was placed. Lastly, the SWAT team did not carry a fire

extinguisher with them as required. The fire extinguisher was in the SWAT armored vehicle and

not available to the officers in Louises home. [Plaintiffs Exhibit 6, Molinet Dep. at pgs. 69-70;

Defendants Pugh Affidavit Exhibit 7, Helmet Cam Video]

After the raid, the SWAT team members can be heard laughing and swearing about

smashing in Louises door. [Defendants Pugh Affidavit Exhibit 7, Helmet Cam Video at 9:50 to

end of video]

In sum, the EPD did not any credible suspect, there was no suspect ever observed, there

was no obstruction, weapons or any imminent threat. The EPD knew there was an open wireless

connection, Louise was the owner of the wireless connection and resident of the home, there

were toddler sized bicycles in the driveway6 and Stephanie was the only person observed

coming to or from the home. A reasonable trier of fact can conclude that the use of the SWAT

team to smash its why into Louises home to serve a search warrant and the use and method of

deployment of the flashbang grenades, was not a reasonable and an excessive use of force.

(e)Derrick Murray

Defendants continually try to establish that Marc Milan, Anthony Milan, Sr. and Anthony

Milan, Jr. were the threatening and dangerous suspects that justify the SWAT raid and detonation

of flashbang grenades. The facts and evidence that the EPD had prior to the raid on Louises

home clearly establish to any reasonable person that Derrick Murray was the true suspect and he

lived two doors down from Louise. In fact, during the pre-raid meeting for Louises home,

Murray was discussed as the person ultimately responsible for the threats. [Plaintiffs Exhibit

11, Gray Dep. at pg. 39]

6Defendants Pugh Affidavit Exhibit 7, Helmet Cam Video at 8:57.



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First, every member of the EPD who was deposed in this matter was fully aware of

whom Murray was, his gang affiliation and prior threats and convictions for the same against law

enforcement. Murray was so well known and where he resided that Det. Seibert made the leap of

tying Marc Milan to Murray because Marc Milan was seen on the 600 block of Powell Avenue.

In addition to being known to the EPD, Murray was spotted by the pre-raid surveillance team

that was watching Louises home prior to the raid and the team actually broke off surveillance

because Murray spotted them. [Plaintiffs Exhibit 9 at 21, Affidavit and Criminal Complaint

for Murray]

Murray being spotted by the surveillance team was shared with Lt. Molinet, Gray, Chief

Bolin and the entire SWAT team at the pre-raid briefing. Importantly, SWAT Team Leader Gray

recalled that Murray was discussed as being the suspect ultimately responsiblefor posting the

threats before the raid on Louises home. Engaging in further surveillance was discussed, but

dismissed by the EPD. [Plaintiffs Exhibit 6, Molinet Dep. at pg. 53; Plaintiffs Exhibit 13,

Brown Investigation Notes] Then during and after the raid on Louises home, Murray was again

milan v evansville d 79 plantiffs response

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