Judge Not Too Concerned That 68-Year-Old Woman's House Was Raided Because Someone Used Her Open WiFi To Post A Threat

by Tim Cushing
Techdirt
Jan. 14, 2015

We've written before about faulty legal activities based on nothing stronger than an IP address. An IP address is not a person, but many entities have decided it's "close enough." Fortunately, the judicial system has (occasionally) stepped in to correct this assumption, usually in the context of copyright infringement lawsuits.

There are those in the law enforcement arena that know an IP address can't be used as an identifier. Careless statements get made about the "danger" of open WiFi connections, or it's suggested that accessing open networks should be illegal. This doesn't have much to do with keeping citizens safe, but it does have everything to do with easing law enforcement's investigative workload.

A lawsuit filed against the Evansville, Indiana police department is being allowed to move forward. [pdf link] The suit centers on the raid of a 68-year-old woman's house -- a raid predicated on an IP address related to an unprotected WiFi connection.

In June of 2012, threats against the police department were posted to Topix.com.

The following posts were discovered under the heading “EPD leak!!! All officers addresses are being passed around Evansville”:

“Me n my boys need them copys asap.need to pay a few a visit.”

“[Chief] Bolin lives behind parkside”

“Lol at all da cops commenting,f#+k the police.you mfs need to b taught a lesson,always harassing n violating mfs rights. 4th of July a cops house gonna got hit.dont care about your kids or btchs lives.I dnt even care about my own life.I got my reasons…times ticking.?”

“Cops be aware.Note:I am proud of my county,but I hate police of any kind..I have explosives.:) made in America.Evansville will feel my pain.guess who’s in the river.”

The police -- possibly tipped off by a news reporter (there were also unverified claims about the FBI contacting the EPD) -- began an investigation. The EPD subpoenaed Topix and the local cable provider to discover the user's information. The information traced back to 68-year-old Louise Milan's house. Information was verified by police wardriving, confirming that there was an open WiFi connection in the vicinity of Milan's residence.

Also discovered during the initial surveillance was known gang member Derrick Murray, who was two houses down sitting on his mother's porch.

A search warrant for the Milan residence was obtained, but notably did not include mention of either Derrick Murray or the unsecured wireless network. Instead, the warrant request asserted that the device from which the threats had been posted was actually in Milan's home.

The request also stated that “in order for a particular electronic device to utilize a particular IP address, . . . [it] requires the electronic device to be IN the residence of 616 E. Powell Avenue to access the internet provided . . . to the residence.”

Further investigation uncovered the criminal activities of Milan's stepson, Anthony Milan and HIS son, Anthony Milan, Jr. This was used by the EPD -- despite neither of these Milans having resided at Louise Milan's residence for over four years -- to tie Milan's home in with the online threats.

Using this information -- much of it faulty or circumstantial -- the EPD determined that the only "safe" way to approach the Milan residence was a SWAT raid. This plan moved ahead despite statements made indicating the EPD knew it was raiding the wrong person's house.

This decision was made, and ultimately carried out, despite the fact that Murray—and not Milan or her relatives—was identified during the “pre-raid briefing” as likely being “ultimately responsible” for the threats.

Helmet cam video of the raid shows how it went down. It was not a "no-knock" warrant, but the "knock" delivered by the SWAT team had very little to do with announcing its presence and everything to do with giving itself permission to smash through the front door and hurl flashbangs into the house.

Louise Milan and her 18-year-old granddaughter were cuffed and led from the house at gunpoint. Their computer was seized. Two days later, the police raided Derrick Murray's residence and recovered the device used to post the threats to Topix. Notably, Murray watched the raid of Milan's house go down from the comfort of his mother's porch.

Shortly thereafter, Milan filed suit against the police department and the city of Evansville, claiming her rights were violated by the SWAT team raid. [pdf link]

Judge William T. Lawrence addresses each of Milan's complaints and, unfortunately, dismisses most of them. For Milan's claim of unreasonable search and seizure, Lawrence states:

When Detective Brown made this statement, however, he knew that an unsecured Wi-Fi network in a residence may be accessed from outside the home. The Court is troubled by Detective Brown’s statement. Even so, the Court finds that his statement did not render the search warrant invalid. Even if Detective Brown had stated that Milan’s router could be accessed from outside the home, the warrant would still be supported by probable cause. The threats were made using Milan’s IP address; “though it was possible that the transmissions originated outside of the residence to which the IP address was assigned, it remained likely that the source of the transmissions was inside that residence.”

The dismissal of the false arrest claims follows in line with Judge Lawrence's determination that the search warrant was valid, despite Detective Brown's false assertions. If the search warrant was valid, the detainment was valid. That Milan was only detained for 20 minutes also factored into this decision.

But when it comes to Milan's accusation of unreasonable force, Judge Lawrence finds enough evidence to allow the lawsuit to proceed.

Officers are allowed to use tactics and force they deem necessary to control a potentially dangerous situation. Law enforcement agencies are granted a lot of leeway by the courts when it comes to raids like these. But Judge Lawrence finds the EPD's assertion that the methods used were necessary because of the potential danger short on evidence of actual danger.

He points again to the the fact that the pre-raid briefing made it clear that Derrick Murray -- not anyone in the Milan residence -- was the most likely suspect. The fact that the posted threats declared July 4th (still two weeks away at the time of raid) to be the day the acts would be carried out also indicated that there was minimal danger in approaching the Milan residence.

Furthermore, the police chief invited a news crew to be on hand for the raid (as "repayment" for the threat tip) -- again suggesting the danger level was rather low. Coupled with the fact that the SWAT team broke through the glass door and threw (rather than carefully placed) distraction devices into the home within seconds of arrival brings Judge Lawrence to the following conclusion.

It is questionable whether the officers had sufficient time to look inside to ensure that no one would be injured by the devices. It is also undisputed that the officers were not carrying a fire extinguisher during the search. These facts lead the Court to conclude that there are questions of fact regarding whether the Defendants’ actions were unreasonable and excessive. Thus, summary judgment on this issue is not appropriate. The Court therefore DENIES summary judgment as to this claim.

Then Judge Lawrence goes further, declaring that the excesses of the EDP's use of force are enough to strip it of qualified immunity.

As detailed above, the decision to use the SWAT team and the distraction devices was made based solely on the nature of the threats and the small possibility that Milan, Sr., Milan, Jr., or Marc were responsible for the threats and would be found inside Milan’s home—that is it. The officers, however, did not see any of those men enter or leave Milan’s residence during their period of surveillance. Additionally, the officers suspected that Milan’s WAP was unsecured and that Murray was “ultimately responsible” for the threats long before they executed the search warrant at Milan’s home. Thus, there was little—if any—evidence that they would encounter a violent person. As discussed above, there was also no emergency situation (as the threat was for July 4), the officers did not carry a fire extinguisher, and the videos arguably indicate that the officers did not have sufficient time to look inside the residence for individuals who might be harmed before tossing (rather than placing) the distraction devices into Milan’s home. Lastly, there did not appear to be a dangerous point of entry. It was a clear day, and the front door (but not the storm door) was open when the SWAT team arrived.

For these same reasons, the Court also concludes that the EPD’s use of force “so clearly exceeded the bounds of reasonableness in the circumstances that it cannot be said to lie near the ‘hazy border between excessive and acceptable force’ along which qualified immunity shields officers from liability for their snap judgments, if those judgments prove to be wrong upon further reflection.” Id. at 786. These were not snap judgments; they were methodical and deliberate decisions, which were based on limited facts and an incomplete investigation. A reasonable officer would know that the EPD’s actions were constitutionally excessive.

While Judge Lawrence's decision to overlook Detective Brown's portrayal of an open WiFi network as a positive indicator of a device's location is unfortunate, his refusal to grant summary judgement against claims of excessive force and his stripping of the principals' qualified immunity somewhat mitigates this. This entire debacle was based on a purposefully wrong assertion, but the Evansville PD has been spared having to answer directly for this misrepresentation.

Louise Milan v Evansville: Complaint (PDF)

Milan v EPD: Defendants' Motion for Summary Judgement (PDF)