The Ninth Circuit Court of Appeals ruled
last week that the DEA’s use of force against the 11-year-old and 14-year-old daughters of Thomas and Rosalie Avina--which included putting a gun to the youngest girl's head--was “excessive,” “unreasonable,” and constituted “intentional infliction of emotional distress.”
Attorneys for the Obama administration defended the raid, and Reason has obtained the brief the DOJ filed to the Ninth Circuit. In it, the Obama administration argues that “the DEA agents’conduct was plainly reasonable under the circumstances.”
After subduing their parents, agents broke into the two girls’ bedrooms during a wrong-door raid in January, 2007. The oldest of the two girls dropped to the floor and was handcuffed by agents before being dragged into the living room and laid next to her mom and dad. The 11-year-old, however, was sleeping when agents came into her room. As they began to shout at her to “get on the ****ing ground,” the girl woke up and “froze in fear.” Agents then dragged her from her bed to the floor. One agent handcuffed her while another aimed a gun at her head.
To a certain extent, the Ninth Circuit Court of Appeals agreed with the DOJ’s brief. It upheld the lower court’s ruling that the treatment of Thomas and Rosalie Avina—Thomas resisted the agents’commands and was tackled to the ground and handcuffed at gunpoint; Rosalie voluntarily dropped to the floor—was not unreasonable or unlawful.
But what of the children? To sway the court, Obama administration lawyers softened their depiction of the agents' treatment of the 11-year-old and 14-year-old girls:
Agents also entered the bedrooms of plaintiffs B.F. and B.S. Avina, who were then fourteen and eleven years old, respectively. Both girls were in bed at the time, and B.S. was sleeping. B.F. complied with the agents’ instruction to get on the ground, and the agents thereafter handcuffed her. B.S. initially resisted the instruction, and agents responded by assisting her to the floor and handcuffing her. The agents did not use profanity in speaking to the girls.
Compared to the Ninth Circuit’s ruling, which uses the facts presented by the Avinas, this is an utter white-washing. The girl identified as “B.S.” is the Avinas’ 11-year-old daughter. She did not “resist the instruction,” but was “frozen in fear.” Agents did not “assist her to the floor,” they dragged her off her bed. They did not just handcuff her, they held a gun to her head.