1 12

‐ 3867 (L)

Terebesi v. Torresso, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2013

(Argued: October 10, 2013 Decided: August 21, 2014)

Docket No. 12

‐ 3867

(consolidated with 12

‐ 3868, 12

‐ 3870, 12

‐ 3898, 12

‐ 3903,

12

‐ 3990)

RONALD TEREBESI,

Plaintiff–Appellee

,

‐ v ‐

SERGEANT JAY TORRESO, SERGEANT STEPHEN

BRENNAN, OFFICER GREGG PHILLIPSON, CHIEF

JOHN F. SOLOMON, LIEUTENANT RONALD KIRBY,

SERGEANT KENNETH JONES, OFFICER WILLIAM

RUSCOE, OFFICER BRIAN WEIR, OFFICER TODD

EDWARDS, OFFICER GREGG LEE, SERGEANT MARK

CIRILLO, OFFICER MICHAEL SWEENEY, all

individually and in their official capacities as police

officers,

Defendants–Appellants

. *

* The Clerk of the Court is respectfully directed to amend

the official caption to appear as set forth above.2 Before: SACK, CHIN, and DRONEY, Circuit Judges

.

Appeal from an order of the United States District

Court for the District of Connecticut (Janet Bond

Arterton, Judge ) granting in part and denying in part the

defendants ʹ motions for summary judgment based on

their assertions of qualified immunity. With respect to

the claims that are properly before us on this

interlocutory appeal, we affirm the decision of the

district court, except as to one claim of qualified

immunity, which we conclude to be meritorious and as

to which we therefore reverse. Because we conclude

that many of the defendants ʹ arguments turn on

disputed allegations of fact, we dismiss these aspects of

the appeal for lack of appellate jurisdiction. To the

extent that the appellants maintain on appeal any

state

‐ law arguments that do not pertain to federal

qualified immunity, they also are dismissed for lack of

jurisdiction.

RICHARD J. BURTURLA, Berchem

Moses & Devlin, P.C., Milford, CT, for

Defendant–Appellant Michael Sweeney

.

ARTHUR C. LASKE, III, Laske Law

Firm, LLC, Fairfield, CT, for

Defendants–Appellants Ronald Kirby,

Kenneth Jones, William Ruscoe, Brian

Weir, Todd Edwards, and Gregg Lee

.

CATHERINE S. NIETZEL, Ryan

Ryan Deluca LLP, Stamford, CT, for

Defendant–Appellant John Solomon

.

ELLIOT B. SPECTOR, Noble, Spector

& O ʹ Connor, P.C., Hartford, CT, for

Defendant–Appellant Mark Cirillo

.3 Thomas R. Gerarde, Beatrice S.

Jordan, Howd & Ludorf, LLC,

Hartford, CT, for Defendants–

Appellants Stephen Brennan and Gregg

Phillipson

.

Scott M. Karsten, Karsten & Tallberg,

LLC, West Hartford, CT, for

Defendant–Appellant Jay Torreso

.

GARY A. MASTRONARDI, Law

Firm of Gary A. Mastronardi (John R.

Gulash, Gulash & Riccio, on the brief ),

Bridgeport, CT, for Plaintiff–Appellee

Ronald Terebesi

.

SACK, Circuit Judge :

This case arises out of a botched SWAT 1

‐ style raid

in Easton, Connecticut, in 2008. The police obtained a

warrant to search the home of the plaintiff, Ronald

Terebesi, for a small amount of crack cocaine and drug

paraphernalia. To execute the search, police planned to

smash Terebesi ʹ s windows, detonate at least three stun

grenades (or ʺ flashbangs ʺ ) inside the home, break down

the front door with a battering ram, and storm the house

with weapons drawn. In the chaos that accompanied

the implementation of this plan, the officers fatally shot

Gonzalo Guizan, Terebesi ʹ s houseguest, and allegedly

injured Terebesi. Both of the occupants were unarmed,

and no weapons were found in the house.

1 SWAT is the acronym for ʺ Special Weapons and Tactics. ʺ

See, e.g.

, Alan D. Cohn, Mutual Aid: Intergovernmental

Agreements for Emergency Preparedness and Response

, 37 Urb.

Law. 1, 45 (2005).4 In 2009, Terebesi and Guizan ʹ s estate brought suit

against the officers involved in planning and executing

the raid, against the police chiefs of several

municipalities whose officers were involved, and

against the municipalities themselves, alleging, inter alia

,

civil rights violations under 42 U.S.C. § 1983 and

associated state tort claims. On December 29, 2011, the

defendants moved for summary judgment, asserting

that the facts of the case and the doctrine of qualified

immunity rendered all of the plaintiffs ʹ claims

unsustainable. The District of Connecticut (Janet Bond

Arterton, Judge ) granted the motions in part and denied

them in part. The defendants appeal from the denial of

summary judgment. On April 11, 2013, Guizan ʹ s estate

notified this Court of a settlement with all defendants,

and the estate is no longer a party to this appeal.

For the reasons set forth below, we AFFIRM in

part the order of the district court, REVERSE in part, and

DISMISS the remainder of the claims for lack of

appellate jurisdiction.

BACKGROUND

On interlocutory appeal, after the denial of the

defendants ʹ motions for summary judgment, ʺ we have

jurisdiction to review a denial of qualified immunity to

the extent it can be resolved ʹ on stipulated facts, or on

the facts that the plaintiff alleges are true, or on the facts

favorable to the plaintiff that the trial judge concluded

the jury might find. ʹʺ Escalera v. Lunn

, 361 F.3d 737, 743

(2d Cir. 2004) (quoting Salim v. Proulx

, 93 F.3d 86, 89 (2d

Cir. 1996)). We proceed to recite the factual basis of our

decision in light of this limitation.5 Police Interactions with Terebesi

Prior to the Raid

In the weeks leading up to the raid on Ronald

Terebesi ʹ s house in Easton, Connecticut, local police

interacted with him on at least four occasions. Because

the defendants assert that these interactions justify the

tactics they employed in the raid, we recount them in

some detail.

On March 31, 2008, at about 2:00 a.m., Officer

Christopher Barton of the Easton Police Department was

dispatched to Terebesi ʹ s home in response to a 911 call

reporting that a man was having a seizure. Incident

Report, Ex. C to Defs. ʹ Local Rule 56(a)(1) Stmt., No.

3:09

‐ cv

‐ 01436, ECF No. 199 ( ʺ Incident Report ʺ ). After

knocking on the door several times with no response,

Barton and his partner entered the residence, found

Terebesi sleeping, and shook him awake. Dep. of

Christopher Barton at 18, Ex. B to Defs. ʹ Local Rule

56(a)(1) Stmt., No. 3:09

‐ cv

‐ 01436, ECF No. 199 ( ʺ Barton

Dep. I ʺ ). Easton Emergency Medical Services personnel

were also on the scene. Incident Report, at 1.

Although Terebesi was surprised and asserted that he

had not called 911, he was not confrontational and

offered no resistance as the officers and medical

personnel lifted him up from his sofa to reveal three

glass

‐ stem pipes and a loaded .357 caliber Smith &

Wesson pistol. Dep. of Officer Christopher Barton at

21, 26–27, Ex. 1 to Guizan ʹ s Local Rule 56(a)(2) Stmt., No.

3:09

‐ cv

‐ 01436, ECF No. 212, ( ʺ Barton Dep. II ʺ ); Incident

Report, at 1.

Terebesi told the officers that he kept the handgun

for his personal safety and protection, and that he had

been receiving threatening messages from ʺ a pimp. ʺ

Guizan ʹ s Local Rule 56(a)(2) Stmt., Part I, ¶ 19, J.A. 305

(citing Terebesi ʹ s deposition). Barton ʺ seized the gun6 for safekeeping, ʺ and told Terebesi he would have to go

to the police station to pick it up. Barton Dep. II, at 30.

Nothing of which we are aware in the record suggests

that Terebesi retrieved the gun from the police station

any time thereafter or, in any event, before the events of

May 18, 2008.

As a result of the incident of March 31, Easton

Police obtained a warrant for Terebesi ʹ s arrest, and

Barton and a colleague served the warrant at Terebesi ʹ s

home. Guizan ʹ s Local Rule 56(a)(2) Stmt., Part I, ¶ 22,

J.A. 306. Terebesi went with the officers to the Easton

police station without incident. See id.

, ¶¶ 22–28, J.A.

306–07. While he was preparing to leave his home,

Terebesi asked the officers how long he would be gone,

expressing concern about leaving his pet macaw

unattended. Aff. of Ronald Terebesi, ¶ 16, J.A. 284–85.

Later, in a conversation during the ride to the police

station, Terebesi told Barton that he owned a

nine

‐ millimeter Beretta pistol, which he considered to be

a collector ʹ s item and which he kept in a display case at

his parents ʹ house in nearby Trumbull, Connecticut. Id.

¶ 19(b), J.A. 286. A subsequent records check revealed

that Terebesi had registered such a pistol in 1990.

Guizan ʹ s Local Rule 56(a)(2) Stmt., Part II, ¶ 4, J.A. 370.

After being booked, Terebesi was released without bond

on a promise to appear. Id. ¶ 6, J.A. 370. Officers

drove him home, unrestrained, in the back of a police

car. Id.

, J.A. 370–71 (citing Barton Dep. II).

On May 7, 2008, at about 4:00 a.m., an

unidentified person or persons attacked Terebesi ʹ s

residence, firing seven blasts from a shotgun through

the windows of the house. Guizan ʹ s Local Rule 56(a)(2)

Stmt., Part I, ¶ 29, J.A. 307. Terebesi, who had been on

the couch watching television, crouched down and ran

into the bedroom, where he stayed until police arrived.

Aff. of Officer David Simpson ¶¶ 6–11, J.A. 168. After7 the shooting, Barton and John Solomon, the Chief of the

Easton Police, spoke with Terebesi regarding the

incident. Although Terebesi agreed to answer their

questions, they found his responses to be unhelpful or,

in their view, untruthful. See Dep. of John Solomon at

166–69, Ex. G to Defs. ʹ Local Rule 56(a)(1) Stmt., No.

3:09

‐ cv

‐ 01436, ECF No. 199 ( ʺ Solomon Dep. ʺ ); Barton

Dep. I at 178–79, 190. Id. Later that day, Barton

convinced Terebesi to return to the police station to give

a statement. Barton Dep. II, at 51.

The following day, as police investigated the

shotgun attack, an acquaintance of Terebesi told police

that Terebesi used crack cocaine daily. Written Stmt. of

Tina T. Lamica at 3, May 8, 2008, J.A. 181–83. Then, on

May 17, 2008, a neighbor complained to police that she

had discovered a bag containing hypodermic needles in

the neighborhood, and that she had observed ʺ a steady

flow ʺ of traffic in and around Terebesi ʹ s house at odd

hours. Barton Dep. II at 65–66; Dep. of James Candee at

173–74, J.A. 188.

Barton responded to the neighbor ʹ s complaint and

proceeded to Terebesi ʹ s residence to speak with him.

Id. at 66. He found the house ʺ barricaded, ʺ with the

windows covered. Id. at 72–73; see also Witness Stmt. of

Sergeant Mark Cirillo, J.A. 208 (describing the windows

as covered with plywood and blankets). After

knocking on the door and receiving no answer, Barton

returned to the police station and telephoned Terebesi

instead. Id. at 67. Terebesi denied knowing about the

bag of needles. Id. at 68. Chief Solomon later testified

that the Easton Police had had no other reports of

drug

‐ related activity in the neighborhood. Solomon

Dep. 520, J.A. 175.8 Planning of the May 18 Raid

The Warrant and Tactical Team Activation

At about 9:00 a.m. on the morning of May 18, a

woman named Chandra Pankov told police that she had

been at Terebesi ʹ s house, and that she had personally

witnessed the use of a small quantity of drugs there.

Barton Dep. II at 117; Search and Seizure Warrant, in J.A.

417–23. Chief Solomon ordered that a search warrant

be prepared and served that day. Solomon Dep. 279.

And he requested that the Southwest [Connecticut]

Regional Emergency Response Team ( ʺ SWERT ʺ ) 2 be

activated in order to assist in serving the warrant. Id. at

284. At 11:34 a.m., the Superior Court granted a search

warrant for two ʺ small clear glass smoking pipes ʺ and

ʺ [c]rack cocaine in a tin box. ʺ Search and Seizure

Warrant, in J.A. 417–23. Witnesses could not remember

another time that SWERT had been activated to seize a

personal

‐ use quantity of drugs. See Dep. of Michael

Sweeney at 61–63, Ex. 26 to Guizan ʹ s Local Rule 56(a)(2)

Stmt., No. 3:09

‐ cv

‐ 01436, ECF No. 212 ( ʺ Sweeney Dep. ʺ );

Dep. of Thomas Kiely at 23, Ex. 34 to Guizan ʹ s Local

Rule 56(a)(2) Stmt., No. 3:09

‐ cv

‐ 01436, ECF No. 212.

2 SWERT is a specialized tactical police unit formed pursuant

to a Mutual Aid Compact among the Connecticut towns of

Easton, Trumbull, Monroe, Darien, Wilton, and Westport.

J.A. 142–45; see also Conn. Gen. Stat. § 7

‐ 277a (setting out a

framework for these mutual agreements). SWERT is

intended to deploy specially trained police officers ʺ to any

incident involving tactical operations, manmade or natural

disaster, search and rescue, dignitary protection, civil unrest,

or any situation requiring immediate augmentation of local

law enforcement personnel to preserve life and protect

property. ʺ SWERT Mutual Aid Compact Addendum, J.A.

142.9 The Briefing

The SWERT team was fully assembled for a

briefing on the operation at about 1:00 p.m. See

Sweeney Dep. at 224. The officers were informed that

the items to be seized were two glass pipes and a tin box

containing narcotics. Dep. of Captain James Candee at

140, Ex. 2 to Pl. Rule 56(a)(2) Stmt., No. 3:09

‐ cv

‐ 01436,

ECF No. 212. Solomon told the team that Terebesi was

a habitual user of crack cocaine, and that he had been the

target of a shotgun attack on May 7. Guizan ʹ s Rule

56(a)(2) Stmt., Part I, ¶¶ 106–07, J.A. 325. Barton, who

signed the search warrant application but did not

participate in the raid, also spoke to the SWERT team

about his previous interactions with Terebesi. Id. ¶¶

113–15, J.A. 327.

Throughout the course of this litigation, the

SWERT team defendants have emphasized in their

defense three statements made in the course of the

briefing. First, Terebesi ʹ s house was described as

having been ʺ fortified ʺ since the May 7 shotgun attack,

although these fortifications amounted only to plywood

affixed to the shot

‐ out windows and hanging blankets to

ʺ catch ʺ any shotgun pellets. Witness Stmt. of Sergeant

Mark Cirillo, J.A. 208. Second, Barton told the team

about ʺ the unaccounted for Beretta that was out there, ʺ

referring to the pistol that Terebesi said he kept at his

parents ʹ house. Barton Dep. II, at 141–42. The other

officers may not have known that the pistol was not kept

in Terebesi ʹ s home. Finally, several defendants report

being told that Terebesi would ʺ use force to protect his

pet bird, ʺ Br. of Ronald Kirby et al.

, at 10, or that ʺ he

would defend this bird to the death, ʺ Br. of Mark Cirillo,

at 13. Barton testified that he told the assembled

SWERT team that Terebesi had expressed an unusual

devotion to his bird, but denied saying that Terebesi

ʺ would fight to the death or he would attack an intruder10 over the well

‐ being of his bird. ʺ 3 Barton Dep. II, at 141–

144.

The Raid Plan

The plan for serving the warrant was developed

by Officer William Ruscoe and Sergeant Kenneth Jones

of the Trumbull Police Department and by Sergeant

Mark Cirillo of the Darien Police Department. Pl. Rule

56(a)(2) Stmt., Part I, ¶ 124, J.A. 329–30. Lieutenant

Ronald Kirby, of the Trumbull Police, acted as the

commander of the SWERT team and reviewed and

approved the plan. Id. The plan also was subject to

the ultimate approval of John Solomon, who, as the

Easton Chief of Police, was the highest

‐ ranking local law

enforcement official involved in the Terebesi matter.

Id. ; see also SWERT Mutual Aid Compact Addendum,

J.A. at 143 ( ʺ The Team shall not commence any

operation without the authorization of the ranking local

law enforcement official at the scene. ʺ ).

The plan called for a team of three officers to

approach the rear of the house and toss two stun

grenades 4 through a rear window. Witness Stmt. of

Officer William Ruscoe, J.A. 197–202

. This would be

3 Barton recalls Terebesi saying, during his arrest for the

March 31 incident: ʺ [T]hat bird ʹ s my life. I would do

anything that I needed to protect that bird. ʺ Barton Dep. II,

at 143.

4 The grenades used by the defendants go by a variety of

names, including ʺ flash grenade, ʺ ʺ stun grenade, ʺ

ʺ concussion grenade, ʺ ʺ distraction device, ʺ and the colloquial

ʺ flashbang. ʺ See, e.g.

, Al Baker, The ʹ Flash Bangs ʹ Are Stilled

, N.Y. Times, Feb. 4, 2010, http:// cityroom.blogs.nytimes.com/

2010/02/04/the

‐ flash

‐ bangs

‐ are

‐ stilled/. They ʺ produce[ ] a

brilliant flash and a loud noise designed to stun and disorient

persons nearby, making resistance less likely. ʺ United States

v. Jones

, 214 F.3d 836, 837 (7th Cir. 2000).11 the first time SWERT had ever used stun grenades in an

operation. Guizan ʹ s Rule 56(a)(2) Stmt., Part II, ¶ 88,

J.A. 395. Another group of officers would knock loudly

at the front door, announce their presence, and then, if

necessary, break the door down with a battering ram.

Witness Stmt. of Officer William Ruscoe, J.A. 197–202.

After the door was breached, one team member would

toss in another stun grenade, and a group of officers

would rush in and restrain anyone in the house. Id

. Police refer to this kind of raid (euphemistically) as a

ʺ dynamic entry. ʺ See generally Karan R. Singh, Note,

Treading the Thin Blue Line: Military Special

‐ Operations

Trained Police SWAT Teams and the Constitution

, 9 Wm. &

Mary Bill of Rts. J. 673, 682–83 (2001).

Not all the team members were satisfied with this

plan. Sergeant John Lawlor and Officer Michael

Redgate told Mark Cirillo that a dynamic entry was too

dangerous for a drug warrant. Dep. of John Lawlor at

32–34, Ex. 9 to Guizan ʹ s Local Rule 56(a)(2) Stmt., No.

3:09

‐ cv

‐ 01436, ECF Doc. No. 212 ( ʺ Lawlor Dep. ʺ ); Dep. of

Michael Redgate at 33–35, Ex. 8 to Guizan ʹ s Local Rule

56(a)(2) Stmt., 3:09

‐ cv

‐ 01436, ECF Doc. No. 212; Dep. of

Mark Cirillo at 146, Ex. 17 to Guizan ʹ s Local Rule 56(a)(2)

Stmt., No. 3:09

‐ cv

‐ 01436, ECF Doc. No. 212; Witness

Stmt. of Sergeant Mark Cirillo, J.A. 209. Lawlor

testified that Cirillo attempted to have the plan changed,

but did not succeed. Lawlor Dep. at 34, 47; see also

Witness Stmt. of Sergeant Mark Cirillo, J.A. 209.

The Raid

The operation began at about 2:00 p.m. on May 18,

2008. Throughout the short raid and its aftermath,

Lieutenant Ronald Kirby recorded a video of the event

from the exterior of the home. Although little can be

seen of the raid from that viewpoint, the recording

purportedly contains a complete audio record of the12 raid, including the successive stun grenade detonations

and a series of gunshots.

At the beginning of the operation, Sergeant Jay

Torreso, of the Monroe Police, and Officer Gregg

Phillipson and Lieutenant Stephen Brennan, of the

Wilton Police, moved to the rear of the house. See

Guizan ʹ s Local Rule 56(a)(2) Stmt., Part II, ¶¶ 116–119,

J.A. 403. Phillipson broke a window and separated the

curtains inside, allowing the other officers to toss their

stun grenades into the house. Id. ¶ 117, J.A. 403.

Either immediately before or at the same time as the first

stun grenade detonated, Brennan began shouting,

ʺ Police! Police with warrant! Hands up! ʺ Id.

, ¶¶ 113,

119, J.A. 402–03.

Meanwhile, the other team members moved to the

front door and announced their presence. Id. ¶ 123, J.A.

404. The parties dispute what happened next. The

defendants assert that Officer Gregg Lee checked to see

whether the door was locked, knocked on the door and

announced the officers ʹ presence, and then waited

several seconds for the occupants to respond before

Officer Todd Edwards breached the door. Defs. ʹ Local

Rule 56(a)(1) Stmt., ¶ 148, J.A. 133. But the plaintiffs

pointed out that only 7.194 seconds 5 elapsed between

the detonation of the second stun grenade, which was

thrown from the rear of the house, and the detonation of

the third stun grenade, which would have been thrown

by the front

‐ entry team after breaching the door.

Guizan ʹ s Local Rule 56(a)(2) Stmt., Part II, ¶ 124, J.A. 404.

Because a stun grenade takes 1.5 seconds to detonate,

the plaintiffs argued, the front entry team had only 5.694

seconds to open the screen door, check to see whether

5 The timing is taken from time stamps on the video

recording, which was prepared by the plaintiff ʹ s expert and

which purports to provide times with that level of precision.13 Terebesi ʹ s door was locked, knock, announce, wait for a

response, breach the door, look inside the room, and

then throw a stun grenade. Id. ¶¶ 124–25, J.A. 404.

The plan called for six officers to enter

sequentially, most brandishing weapons and wearing

body armor. Defs. ʹ Local Rule 56(a)(1) Stmt., ¶¶ 152–56

162, J.A. 134–35, 137. Michael Sweeney of the Monroe

Police was to enter the apartment first, wearing full

ballistic body armor and a Kevlar helmet and carrying a

ballistic shield and a Glock semiautomatic pistol. Id

., ¶¶ 152, 162, J.A. 134, 137. Officer Brian Weir of the

Trumbull Police would follow, carrying a rifle. Id. ¶

153, J.A. 134. Officer Donald Allen would be third,

followed by Officer Kenneth Jones, who would carry a

Taser—a ʺ less [than] lethal option. ʺ Id. ¶¶ 154–55, J.A.

134–35. Ruscoe and Cirillo, designated ʺ team field

leaders, ʺ would be the fifth and sixth officers to enter the

house. Id. ¶ 156, J.A. 135.

The police officers ʹ testimony was not entirely

consistent with respect to what the plan required once

the team had breached the door. Ruscoe, one of the

planners, stated that none of the team members was to

enter the house until after the third stun grenade was

deployed

. Written Stmt. of Officer William Ruscoe, J.A.

198. Officer Michael Sweeney, the first in the entry

team, said that the plan required him to enter the room

before the third stun grenade detonated. Sweeney Dep.

246–47, J.A. 227. If Sweeney encountered any

occupants once inside the house, his orders were to ʺ pin ʺ

them with his shield. Id. at 316, J.A. 238.

Irrespective of the plan, the parties now agree that

Sweeney entered the house before the third stun

grenade detonated. E.g.

, Guizan ʹ s Local Rule 56(a)(2)

Stmt., Part I, ¶ 162, J.A. 353. Upon entering, Sweeney

saw two men in the far right corner of the room,14 crouching, extending their arms, and screaming.

Sweeney Dep. 271–74, J.A. 233–34. Sweeney testified at

his deposition that when the third stun grenade went

off, he felt projectiles striking his boot and his shield,

and he ʺ thought [he] was taking fire. ʺ Id. at 249–50, J.A.

228. He further testified that he felt Terebesi push and

pull on his shield, and his pistol being pulled downward

and away. Id. at 322–23, 329–30, J.A. 240–42. Sweeney

fired his pistol for the first time as the third stun grenade

detonated. Guizan ʹ s Local Rule 56(a)(2) Stmt., Part II, ¶

113, J.A. 402. He then fired repeatedly until he

regained control of his weapon. Sweeney Dep. 331, J.A.

242. These shots hit Guizan several times, killing him.

Defs. ʹ Local Rule 56(a)(1) Stmt., ¶ 179, J.A. 139. During

the commotion, Weir fired one shot into the floor.

Guizan ʹ s Local Rule 56(a)(2) Stmt., Part II, ¶ 142, J.A. 409.

The plaintiffs disputed Sweeney ʹ s testimony,

arguing that no struggle took place, that there was no

time for any struggle, and that the forensic evidence

does not support Sweeney ʹ s description of events. The

defendants ʹ forensic expert stated that, at the time at

least some of the shots were fired, Guizan ʹ s left hand

was within a distance of Sweeney ʹ s weapon that was

ʺ greater than actual contact but less than twelve inches. ʺ

Id. ¶ 180, J.A. 139. The plaintiffs did not dispute the

distance, but argue that the forensic evidence suggests

that at the time of the shooting, Guizan was on the floor,

sitting or lying on his back, with his hands turned away

from Sweeney. Guizan ʹ s Local Rule 56(a)(2) Stmt., Part

II, ¶ 131, J.A. 405–06.

After he stopped shooting, Sweeney fell on top of

Terebesi, pinning him with his shield. Defs. ʹ Local Rule

56(a)(1) Stmt., ¶ 176, J.A. 139. Terebesi alleges that,

while he was pinned to the floor, someone, who he now

thinks was Sweeney, struck him with a firearm.

Terebesi ʹ s Rule 56(a)(2) Stmt., ¶ 204, J.A. 276. Terebesi15 claims that the entire incident exacerbated his

pre

‐ existing post

‐ traumatic stress disorder and caused

injuries to his head, neck, and extremities. Id. ¶ 205,

J.A. 278–79. The detonation of the stun grenades also

started a fire in Terebesi ʹ s home, although the resulting

damage was apparently not extensive. See id.

After the raid, the police searched the residence,

recovering some drug paraphernalia with powder

residue and ʺ pieces of brown rock[

‐ ]like substance ʺ

totaling 0.020 ounces. 6 Search and Seizure Warrant,

J.A. 417

‐ 423. No firearms were found.

Procedural History

In 2009, Terebesi and Guizan ʹ s estate filed

separate complaints in the District of Connecticut

against the police officers involved in the raid and in

obtaining the search warrant, against the police chiefs of

the departments participating in SWERT, and against

the municipalities in which the departments were

located. The two cases eventually were consolidated.

The complaints included: (i) section 1983 claims for

6 To provide context, we note that although doses— ʺ rocks ʺ

—

of crack cocaine are sold by size, rather than by weight, see

United States v. Wright

, 131 F.3d 1111, 1113 (4th Cir. 1997), the

weight of a typical dose appears to vary from 0.1 to 0.25

grams (0.0035–0.0088 ounces), see, e.g.

, United States v.

Ramirez

‐ Negron

, 751 F.3d 42, 46 (1st Cir. 2014); United States v.

Barrow

, 287 F.3d 733, 737 (8th Cir. 2002); United States v.

Steward

, 252 F.3d 908, 909 (7th Cir. 2001); Caleb Mason, Jay

Z ʹ s 99 Problems, Verse 2: A Close Reading with Fourth

Amendment Guidance for Cops and Perps

, 56 St. Louis U. L.J.

567, 570 n.14 (2012) (noting that ʺ rocks ʺ vary ʺ somewhat in

weight, but a tenth of a gram is a good rule of thumb ʺ ).

Assuming that the substance recovered was crack cocaine,

the reported amount recovered was therefore roughly

equivalent to two to six doses.16 violations of the plaintiffs ʹ rights under the Fourth and

Fourteenth Amendments based on the defendants

obtaining the search warrant and their planning and

execution of the raid; (ii) section 1983 claims against the

towns and police chiefs for failure to train and for

unconstitutional policies and procedures; and (iii) state

law claims for negligence. The plaintiffs sought

compensatory and punitive damages, costs, and

attorney ʹ s fees.

In December 2011, the defendants moved for

summary judgment, alleging, among other things, that

the claims were barred by federal and state doctrines of

qualified immunity. On August 29, 2012, the district

court partly granted and partly denied these motions.

Guizan v. Town of Easton

, No. 3:09

‐ cv

‐ 1436(JBA), 2012 WL

3775876, 2012 U.S. Dist. LEXIS 123727 (D. Conn. Aug. 29,

2012). The court concluded that the department

lawfully procured the search warrant and granted

summary judgment to the defendants on that claim.

But it denied summary judgment with respect to the

plaintiffs ʹ other section 1983 and state tort claims against

the raid participants and planners. The district court

also granted summary judgment in favor of the police

chiefs on the failure

‐ to

‐ train claims, but allowed the

municipal liability claims to proceed.

The individual officers then filed this

interlocutory appeal challenging the district court ʹ s

denial of summary judgment concerning their assertions

of qualified immunity. 7 On April 11, 2013, the estate of

Gonzalo Guizan notified this Court of an impending

settlement with all appealing defendants. In July, we

ordered that the appeal be withdrawn as to the estate,

7 The Town of Darien initially joined this appeal, but

withdrew on March 21, 2013.17 and that the appeal proceed only with respect to

Terebesi. We heard argument on October 10, 2013.

DISCUSSION

On appeal, the defendants make three arguments:

first, that Terebesi ʹ s claims for excessive force arising out

of the activation of SWERT, the raid plan, the so

‐ called

ʺ dynamic entry, ʺ the use of stun grenades, and

Terebesi ʹ s encounter with Officer Michael Sweeney are

all barred by the doctrine of qualified immunity, and

that their actions were objectively reasonable; second,

that they complied with any requirements of the Fourth

Amendment ʺ knock

‐ and

‐ announce ʺ rule, and that they

were in any case entitled to qualified immunity on this

claim; and, third, that they were entitled to

governmental immunity under Connecticut law for

Terebesi ʹ s negligence claims. 8

I. Appellate Jurisdiction 9

and Standard of Review

This appeal comes to us from the denial of a

motion for summary judgment, which ordinarily is not

an appealable final order. See 28 U.S.C. § 1291 (limiting

jurisdiction to ʺ appeals from

. . . final decisions ʺ of a

district court); Coopers & Lybrand v. Livesay

, 437 U.S. 463,

467 (1978) (same). We may nevertheless entertain

appeals from interlocutory orders in the narrow class of

8 Defendant Solomon also argued in his brief that the

plaintiffs failed to establish the necessary elements for

intentional infliction of emotional distress. At oral

argument, Solomon ʹ s counsel indicated that the defendant

was no longer pursuing this argument on appeal.

9 We have the ʺ independent obligation to consider the

presence or absence ʺ of appellate jurisdiction, even if the

appellee has not raised the issue. Joseph v. Leavitt

, 465 F.3d

87, 89 (2d Cir. 2006), cert. denied

, 549 U.S. 1282 (2007).18 cases in which rights ʺ will be irretrievably lost in the

absence of an immediate appeal. ʺ Wabtec Corp. v.

Faiveley Transport Malmo AB

, 525 F.3d 135, 138 (2d Cir.

2008) (internal quotation marks omitted). Because

federal qualified immunity supplies not only a bar to

liability but also an ʺ entitlement not to stand trial or face

the other burdens of litigation, ʺ Mitchell v. Forsyth

, 472

U.S. 511, 526 (1985), the Supreme Court and the federal

courts of appeals allow some interlocutory appeals from

district court decisions rejecting defenses of qualified

immunity as a ʺ limited exception ʺ to the final judgment

rule, Grune v. Rodriguez

, 176 F.3d 27, 32 (2d Cir. 1999)

(internal quotation marks omitted).

A district court ʹ s denial of qualified immunity on

a summary judgment motion is an appealable final

decision only ʺ to the extent the denial turns on an issue

of law. ʺ McCullough v. Wyandanch Union Free Sch. Dist.

,

187 F.3d 272, 277 (2d Cir. 1999); accord Mitchell

, 472 U.S.

at 530. Appealable matters involve ʺ disputes about the

substance and clarity of pre

‐ existing law, ʺ not about

ʺ what occurred, or why an action was taken or omitted. ʺ

Ortiz v. Jordan

, 131 S. Ct. 884, 892 (2011) (citing Behrens v.

Pelletier

, 516 U.S. 299, 313 (1996), and Johnson v. Jones

, 515

U.S. 304, 317 (1995)).

Where factual disputes persist, we may exercise

appellate jurisdiction only for the limited purpose of

deciding whether, on the basis of ʺ stipulated facts, or on

the facts that the plaintiff alleges are true, or on the facts

favorable to the plaintiff that the trial judge concluded

the jury might find, the immunity defense is established

as a matter of law. ʺ Salim v. Proulx

, 93 F.3d 86, 90 (2d

Cir. 1996). Our review is thus limited to the

defendant ʹ s arguments that these ʺ facts show either that

he ʹ didn ʹ t do it ʹ or that it was objectively reasonable for

him to believe that his action did not violate clearly

established law. ʺ Id

. at 90–91. In considering these19 questions, ʺ we will disregard any disputed facts or facts

that contradict [the plaintiff ʹ s] version of events. ʺ

Cowan ex rel. Estate of Cooper v. Breen

, 352 F.3d 756, 761

(2d Cir. 2003). And while ʺ we have jurisdiction to

determine whether the issue is material ʺ to the legal

issues properly before us, we may not review ʺ whether

it is genuine

. ʺ Bolmer v. Oliveira

, 594 F.3d 134, 140

‐ 41 (2d

Cir. 2010) (emphasis in original); see also Droz v.

McCadden

, 580 F.3d 106, 108 (2d Cir. 2009) ( per curiam )

( ʺʹ [W]e may not review whether a dispute of fact

identified by the district court is truly genuine. ʹʺ

(quoting Escalera

, 361 F.3d at 743)), cert. denied

, 559 U.S.

1031 (2010). Within these constraints, ʺ our review is de

novo

. ʺ Bolmer

, 594 F.3d at 141.

The defendants here allege at least some qualified

immunity defenses over which we may properly

exercise appellate jurisdiction: inter alia

, that the relevant

law was not clearly established, that the application of

the Fourth Amendment to certain conduct has not been

established, and that the facts as alleged by the plaintiff

demonstrate the objective reasonableness of the

defendants ʹ actions. Some of the defendants ʹ

arguments depend, however, on their versions of

contested facts, or on the district court ʹ s determinations

of evidentiary sufficiency—questions over which we

have no jurisdiction. We will therefore continue our

jurisdictional inquiry in the course of reviewing the

merits of the defendants ʹ appeals.

II. Principles of Qualified Immunity

Federal law provides a private right of action for

money damages against state officials, acting ʺ under

color ʺ of law, who violate a constitutional or statutory

right. 42 U.S.C. § 1983; see also Camereta v. Greene

, 131 S.

Ct. 2020, 2030 (2011). But the doctrine of qualified

immunity shields both state and federal officials from20 suit ʺ unless [1] the official violated a statutory or

constitutional right that [2] was clearly established at the

time of the challenged conduct. ʺ 10 Reichle v. Howards

,

132 S. Ct. 2088, 2093 (2012); see also Harlow v. Fitzgerald

,

457 U.S. 800, 818 (1982) (setting out the standards for

qualified immunity); Matusick v. Erie Cnty. Water Auth.

,

__ F.3d

__, 2014 WL 700718, at *18 & n.15, 2014 U.S. App.

LEXIS 3683, at *59 & n.15 (2d Cir. Jan. 3, 2014)

(discussing the scope of the two

‐ prong inquiry). This

doctrine balances ʺ the need to hold public officials

accountable when they exercise power irresponsibly and

the need to shield officials from harassment, distraction,

and liability when they perform their duties

reasonably. ʺ Pearson v. Callahan

, 555 U.S. 223, 231

(2009).

Official conduct violates clearly established law

ʺ when, at the time of the challenged conduct, ʹ the

contours of a right are sufficiently clear ʹ that every

ʹ reasonable official would have understood that what he

is doing violates that right. ʹʺ Ashcroft v. al

‐ Kidd

, 131 S. Ct.

2074, 2083 (2011) (quoting Anderson v. Creighton

, 483 U.S.

635, 640 (1987) (brackets omitted)). The purpose of the

doctrine is to ensure that the official being sued had ʺ fair

warning ʺ that his or her actions were unlawful. Hope v.

Pelzer

, 536 U.S. 730, 739–40 & n.10 (2002). To this end, a

plaintiff need not show a case ʺ directly on point, but

existing precedent must have placed the statutory or

constitutional question beyond debate. ʺ 11 al

‐ Kidd

, 131 S.

10 We may exercise our ʺ sound discretion in deciding which

of the two prongs of the qualified immunity analysis should

be addressed first in light of the circumstances in the

particular case at hand. ʺ Pearson v. Callahan

, 555 U.S. 223,

236 (2009) (modifying Saucier v. Katz

, 533 U.S. 194 (2001)).

11 The precedent establishing a constitutional right must be

more precise than, for example, the ʺ broad history and

purposes of the Fourth Amendment. ʺ al

‐ Kidd

, 131 S. Ct. at21 Ct. at 2083; accord Stanton v. Sims

, 134 S. Ct. 3, 5 (2013)

( per curiam ); Fabrikant v. French

, 691 F.3d 193, 213 (2d Cir.

2012).

To determine whether the relevant law was

clearly established, we consider the specificity with

which a right is defined, the existence of Supreme Court

or Court of Appeals case law on the subject, and the

understanding of a reasonable officer in light of

preexisting law. See Scott v. Fischer

, 616 F.3d 100, 105

(2d Cir. 2010). Even if this Court has not explicitly held

a course of conduct to be unconstitutional, we may

nonetheless treat the law as clearly established if

decisions from this or other circuits ʺʹ clearly foreshadow

a particular ruling on the issue. ʹʺ 12 Id. (quoting Varrone

2084 (warning courts ʺ not to define clearly established law at

a high level of generality ʺ ) (internal quotation marks

omitted). But, in some cases, a generally phrased statement

of the law may provide sufficient warning that the

defendant ʹ s conduct is unconstitutional. See Hope

, 536 U.S.

at 741 ( ʺ [G]eneral statements of the law are not inherently

incapable of giving fair and clear warning, and in other

instances a general constitutional rule already identified in

the decisional law may apply with obvious clarity to the

specific conduct in question, even though the very action in

question has not previously been held unlawful. ʺ (quoting

United States v. Lanier

, 520 U.S. 259, 270

‐ 71 (1997)) (internal

quotation marks and brackets omitted)). The ʺ salient

question

. . . is whether the state of the law [at the time of the

act] gave [the defendants] fair warning that their alleged

treatment of [the plaintiff] was unconstitutional. ʺ Id.

12 We do not think that, as some decisions in this Circuit have

suggested, ʺ [ o ] nly Supreme Court and Second Circuit

precedent existing at the time of the alleged violation is

relevant in deciding whether a right is clearly established. ʺ

Moore v. Vega

, 371 F.3d 110, 114 (2d Cir. 2004) (emphasis

added) (citing Townes v. City of New York

, 176 F.3d 138, 14422 v. Bilotti

, 123 F.3d 75, 79 (2d Cir. 1997)) ; see also Weber v.

Dell

, 804 F.2d 796, 801 n.6, 803

‐ 04 (2d Cir. 1986) (looking

to decisions of other circuits for clearly established law),

cert. denied

, 483 U.S. 1020 (1987).

III. Excessive Force Claims

The Fourth Amendment governs ʺ the

reasonableness of the manner in which a search or

seizure is conducted. ʺ Tennessee v. Garner

, 471 U.S. 1,

7

‐ 8 (1985); see also U.S. Const. amend. IV ( ʺ The right of

the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures,

shall not be violated

. . . . ʺ ). Determining whether a use

of force was ʺ reasonable ʺ under the Fourth Amendment

ʺ requires a careful balancing of the nature and quality of

the intrusion on the individual ʹ s Fourth Amendment

interests against the countervailing governmental

interests at stake. ʺ Graham v. Connor

, 490 U.S. 386, 396

(1989) (internal quotation marks omitted). We ask

ʺ whether the officers ʹ actions are objectively reasonable

in light of the facts and circumstances confronting them,

without regard to their underlying intent or motivation. ʺ

Id. at 397 (internal quotation marks omitted). In doing

(2d Cir. 1999), cert. denied

, 528 U.S. 964). (The author of this

opinion was a member of the panel in Moore .) Townes

correctly stated that we consider ʺ whether the Supreme

Court or the Second Circuit had affirmed the existence of the

right, ʺ Townes

, 176 F.3d at 144, but the opinion also made

clear that, ʺ [e]ven in the absence of binding precedent, a right

is clearly established if the contours

. . . are sufficiently clear

that a reasonable official would understand that what he is

doing violates that right. ʺ Id. (citing Anderson

, 483 U.S. at

640) (internal quotation marks and brackets omitted).

Though not directly binding on this Court, the decisions of

other circuits may reflect that the contours of the right in

question are clearly established.23 so, we consider ʺ the severity of the crime at issue,

whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight. ʺ

Id. at 396.

This appeal concerns the reasonableness of the

raid plan, the decision to use SWERT to effect the search,

the use of stun grenades in the raid, and the actions of

defendants Sweeney and Weir upon entering Terebesi ʹ s

residence. We reverse the district court on one point:

insofar as it denied summary judgment to Chief

Solomon on the issue of his decision to activate SWERT

in connection with the search, we conclude that the

relevant law was not clearly established. But for the

reasons stated below and to the extent that the

defendants ʹ appeals are properly before this Court, we

affirm the district court ʹ s denial of summary judgment

as to all defendants on all other excessive force claims.

A. SWERT Activation

The plaintiff ʹ s theory of excessive force includes

two claims relating to decisions that took place prior to

the raid. In one claim, the plaintiff argues that the

defendants who developed and approved the raid plan

are liable for authorizing an excessive use of force in

effecting a search and seizure. This claim concerns the

details of the raid plan, and we address it below, in part

III.B. Separately, the plaintiff argues that Solomon is

liable for authorizing a use of excessive force because he

decided to serve the search warrant using a SWAT team

rather than ordinary uniformed officers. This claim

asserts that the decision to deploy a tactical team can,

under certain circumstances, constitute an

unconstitutional use of force, regardless of the details of

the planned operation. We find that Solomon is24 entitled to qualified immunity with respect to this

decision.

At least two circuits and one decision from the

District of Connecticut have suggested that the decision

to employ a tactical team may violate the Fourth

Amendment ʹ s prohibition on excessive force. 13 See

Estate of Smith v. Marsaco

, 430 F.3d 140, 149

‐ 50 (3d Cir.

2005); Holland ex rel. Overdorff v. Harrington

, 268 F.3d

1179, 1189–90 (10th Cir. 2001), cert. denied

, 535 U.S. 1056

(2002); Warren v. Williams

, No. Civ. 03:40CV537 (JCH),

2006 WL 860998, at *27, 2006 U.S. Dist. LEXIS 18900, at

*82–*84 (D. Conn. Mar. 31, 2006). The district court

referred to these decisions in denying summary

judgment on this issue. Guizan

, 2012 WL 3775876, at

*11, 2012 U.S. Dist. LEXIS 123727, at *31

‐ *32.

In November 2012—after the district court ʹ s

decision in this case, but before the appeal was

briefed—a panel of this Court determined that ʺ there

was no ʹ clearly established ʹ right in this Circuit to be free

from the deployment of a police SWAT team. ʺ

Fortunati v. Vermont

, 503 F. App ʹ x 78, 81 (2d Cir. 2012)

(non

‐ precedential summary order). In that case,

13 These decisions do not necessarily distinguish between

claims arising out the decision to deploy a SWAT team and

claims arising out a particular plan for executing a search

warrant. See Holland

, 268 F.3d at 1189 (whether raid

planning, which included the use of a SWAT team, violated

the Fourth Amendment); Warren

, 2006 WL 860998, at *27,

U.S. Dist. LEXIS 18900, at *82 (assessing ʺ the decision itself by

law enforcement to use ʹ dynamic entry ʹ (i.e., a ʹ SWAT

team ʹ ) ʺ ). Insofar as these decisions are premised on the

substance of the planned operation, rather than on the mere

decision to use a tactical team, we think that they provide

further support for our decision in part III.B. to affirm the

denial of qualified immunity for the plaintiff ʹ s planning

claim.25 members of a police tactical team fatally shot a man who

was known to be ʺ armed and unstable, ʺ who was at

large in the woods, and who had threatened family

members at gunpoint hours before the shooting.

Fortunati v. Campagne

, 681 F. Supp. 2d 528, 532

‐ 34, 544

(D. Vt. 2009), aff ʹ d

, 503 F. App ʹ x 78 (2d Cir. 2012).

Unlike in the case at bar, the challenged decision to

deploy a tactical team to take the decedent into custody

was made in response to an ongoing and evolving

situation, not in the context of the planned execution of a

search warrant. Although the district court found a

triable issue of fact as to whether it was reasonable to

deploy the tactical team, id. at 544, both the district court

and this Court agreed that the law on SWAT team

deployment was not clearly established in this Circuit.

Id. ; Fortunati

, 503 F. App ʹ x at 81.

We agree that there is no clearly established right

in this Circuit to be free from the deployment of a

tactical team in general. 14 Fortunati

, 503 F. App ʹ x at 81.

We of course recognize that this Circuit ʹ s order in

Fortunati is not binding precedent. See United States v.

Cassesse

, 685 F.3d 186, 191 n.4 (2d Cir. 2012). But in the

context of qualified immunity determinations, police

officers are not ʺ expected to predict the future course of

constitutional law, ʺ and ʺ it is unfair to subject police to

money damages for picking the losing side of the

14 We would, in any event, be hesitant to craft a rule that

would attach to any decision to deploy a tactical team,

regardless of the context and substance of the planned

operation. A SWAT team might be properly activated for any

number of reasons, some of which we could not anticipate in

any single case. E.g.

, Fortunati

, 681 F. Supp. 2d at 532–34;

Phillips v. James

, 422 F.3d 1075, 1082 (10th Cir. 2005)

(concluding that it was not unreasonable for a police officer

to activate a SWAT team to secure the perimeter of a possible

crime scene in support of other police operations).26 controversy. ʺ Wilson v. Layne

, 526 U.S. 603, 617–18

(1999) (internal quotation marks omitted). It is difficult

to ask that a police officer identify clearly established

law that three judges of this Court could not find. We

therefore reverse the decision of the district court insofar

as it denied qualified immunity to Chief Solomon for his

decision to call out a tactical team in connection with the

search of Terebesi ʹ s home.

We stress that our reversal relates only to the

decision to deploy SWERT to execute the search

warrant. Neither Solomon nor any other defendant is

qualifiedly immune at the summary judgment stage

from any Fourth Amendment liability he may otherwise

have in connection with the planning of the raid,

including any liability for authorizing or directing the

team members to carry out the search in an unlawful

manner or for failing to intervene in constitutional

violations committed by others. See infra

, Parts III.B., V.

B. Raid Plan

The defendants 15 argue that, because a seizure

has yet to take place at the time a raid plan is

formulated, planning activity is governed solely by the

Fourteenth Amendment ʹ s Due Process Clause, which is

ʺ violated by executive action only when it can properly

be characterized as arbitrary, or conscience shocking, in

a constitutional sense. ʺ Cnty. of Sacramento v. Lewis

, 523

U.S. 833, 847 (1998). This argument relies on a

selective—and incorrect—reading of the case law. We

15 The plaintiff ʹ s claims relating to the raid plan apply to

Cirillo, Jones, and Ruscoe, who formulated the plan; to Kirby,

who reviewed and approved the plan; and to Solomon, who

exercised the ultimate authority to approve and direct the

plan. The plaintiff also claims that all defendants are liable

for failing to intervene with respect to the raid plan; this

aspect of the claim is addressed below.27 agree instead with the district court that officers who

authorize or direct the use of force in effecting a search

or seizure must comply with the Fourth Amendment in

doing so. And, viewing the facts in the light most

favorable to Terebesi, we conclude that his claims in this

respect were sufficient to withstand the defendants ʹ

claims of qualified immunity at the summary judgment

stage.

A plaintiff is permitted to bring suit under section

1983 against ʺ [e]very person who

. . . causes [him] to be

subjected ʺ to a deprivation of constitutional rights. 42

U.S.C. § 1983; Rizzo v. Goode

, 423 U.S. 362, 370 (1976).

Section 1983 does not give rise to respondeat superior

liability against the employer of a person who infringes

upon another ʹ s constitutional rights. Iqbal

, 556 U.S. at

676. But a supervisor may be held liable if he or she

was personally a ʺ direct participant ʺ in the

constitutional violation. Richardson v. Goord

, 347 F.3d

431, 435 (2d Cir. 2003) ( per curiam ). In this Circuit, a

ʺ direct participant ʺ includes a person who authorizes,

orders, or helps others to do the unlawful acts, even if he

or she does not commit the acts personally. Provost v.

City of Newburgh

, 262 F.3d 146, 155 (2d Cir. 2001); see also

Gronowski v. Spencer

, 424 F.3d 285, 293–94 (2d Cir. 2005)

(addressing a city mayor ʹ s role in allegedly

unconstitutional retaliation against the plaintiff, a

former city employee).

This principle is often reflected in our cases

concluding that a defendant in a section 1983 suit ʺ did

not engage in or authorize any of the brutalities alleged. ʺ

Al

‐ Jundi v. Estate of Rockefeller

, 885 F.2d 1060, 1065–66 (2d

Cir. 1989) (emphasis added) (concerning a plan to retake

the Attica prison from rioting inmates); see also Rizzo

, 423

U.S. at 371 (stressing that there was no evidence

showing the defendants ʹ ʺ authorization or approval ʺ of

misconduct); Williams v. Vincent

, 508 F.2d 541, 546 (2d28 Cir. 1974) (rejecting claim because it did not allege

authorization of specific conduct). Other circuits that

have addressed excessive force claims like Terebesi ʹ s

have reached similar conclusions. See, e.g.

, Backes v.

Village of Peoria Heights

, 662 F.3d 866, 869–71 (7th Cir.

2011) (concluding that, while police chief might have

been liable if he had approved a raid plan that involved

excessive force, he had instead deferred to an outside

tactical team over which he had no authority); Santiago v.

Warminster Township

, 629 F.3d 121, 129 (3d Cir. 2010)

(claim that defendants ʺ creat[ed] and authorize[ed] ʺ a

raid plan that directed other officers to use excessive

force was distinct from a theory of respondeat superior

and was permissible under § 1983); Watkins v. City of

Oakland

, 145 F.3d 1087, 1093 (9th Cir. 1998) (stating that,

supervisor ʹ s liability for an officer ʹ s use of excessive

force ʺ hinges on whether he set in motion a series of acts

by others

. . . which he knew or reasonably should have

known[ ] would cause others to inflict the constitutional

injury ʺ (internal quotation marks omitted)).

Our case law thus clearly establishes that planners

may be liable under section 1983 to the extent that a plan

for a search or seizure, as formulated and approved by

those defendants, provides for and results in an

unconstitutionally excessive use of force. See, e.g.

,

Provost

, 262 F.3d at 155. We therefore reject the

defendants ʹ assertions that the law in this respect is not

clearly established. 16 A defendant who plans or directs

16 The defendants ʹ reliance on this Court ʹ s opinion in Salim

,

93 F.3d 86, is misplaced. That case arose from an officer ʹ s

pursuit and eventual fatal shooting of a 14

‐ year

‐ old boy who

had recently escaped from juvenile detention. Id. at 88.

The plaintiff (the boy ʹ s mother) alleged that the officer had

himself ʺ created the situation in which the use of deadly

force became necessary ʺ by violating police procedure in

several respects in advance of the shooting. Id. at 92. We29 an unreasonable use of force is liable for the resulting

constitutional violation as a ʺ direct participa[nt]. ʺ Id

.

determined that these alleged failings were irrelevant

because the Fourth Amendment reasonableness inquiry

ʺ depends only on the officer ʹ s knowledge of circumstances

immediately prior to and at the moment that he made the

split

‐ second decision to employ deadly force. ʺ Id.

Salim is consistent with a group of ʺ pre

‐ seizure

conduct ʺ cases from other circuits. See generally Aaron

Kimber, Note, Righteous Shooting, Unreasonable Seizure? The

Relevance of an Officer ʹ s Pre

‐ Seizure Conduct in an Excessive

Force Claim

, 13 Wm. & Mary Bill Rts. J. 651 (2004) (collecting

cases). The common thread in these cases is the plaintiffs ʹ

attempt to argue that a use of force that might appear

reasonable if considered in isolation was in fact unreasonable

because the officers ʹ prior conduct created the danger of

escalation. See Schulz v. Long

, 44 F.3d 643, 647 (8th Cir. 1995)

(officers ʹ interactions with mentally ill suspect allegedly ʺ set

in motion a chain of events which culminated in [plaintiff]

being shot ʺ ); Carter v. Buscher

, 973 F.2d 1328 (7th Cir. 1992)

(ill

‐ conceived ruse, which did not contemplate excessive

force, provoked deadly confrontation); Fraire v. City of

Arlington

, 957 F.2d 1268 (5th Cir.) (failure to follow police

procedure in pursuit of suspect not relevant to deadly force

claim), cert. denied

, 506 U.S. 973 (1992); Greenidge v. Ruffin

, 927

F.2d 789 (4th Cir. 1991) (violations of procedure for nighttime

prostitution arrests created more dangerous situation). In

cases like these, courts in this Circuit and others have

discarded evidence of prior negligence or procedural

violations, focusing instead on ʺ the split

‐ second decision to

employ deadly force

. ʺ Salim

, 93 F.3d at 92.

This is not such a case. The plaintiff does not allege

that the defendants improperly contributed to the likelihood

of a deadly confrontation between the officers and the

occupants of the Terebesi home. Rather, he alleges that the

raid as planned

, even if it had gone perfectly and not ended in

Guizan ʹ s death, constituted an unreasonable use of force

against his person and his home.30 Terebesi alleges that the raid plan here

contemplated a seizure of his person, 17 and that, as

formulated (and ultimately executed), the planned use

of force was excessive. By formulating and approving

the plan, Terebesi contends, defendants Cirillo, Jones,

Kirby, Ruscoe, and Solomon authorized or assisted in

effecting a seizure involving excessive force.

Even if the plan expressly contemplated only a

search, the same Fourth Amendment protections would

apply. See United States v. Ramirez

, 523 U.S. 65, 71 (1998)

( ʺ The general touchstone of reasonableness which

governs Fourth Amendment analysis governs the

method of execution of [a search] warrant. ʺ (citation

omitted)). As with a seizure, the use of excessive force

in the conduct of the search may render the police ʹ s

actions unreasonable. See

, e.g.

, Los Angeles Cnty. v.

Rettele

, 550 U.S. 609, 614 (2007) ( per curiam ) (applying

Fourth Amendment test of reasonableness to police

conduct in executing a search warrant); Boyd v. Benton

Cnty.

, 374 F.3d 773, 779

‐ 80 (9th Cir. 2004) (same); cf.

Winston v. Lee

, 470 U.S. 753, 760 (1985) ( ʺ [T]he [Fourth]

Amendment ʹ s ʹ proper function is to constrain

. . . against

17 The plan expressly provided that the officers would seize

occupants of the Terebesi home, and it largely ʺ determine[d]

the degree of force initially to be applied in effecting the

seizure itself, ʺ Holland

, 268 F.3d at 1190. It called for six

officers to charge into Terebesi ʹ s home, amid or just after a

series of stun grenade detonations, with weapons drawn,

and for one officer to ʺ pin ʺ any occupants encountered to the

ground with his ballistic shield. J.A. at 353. When the raid

was executed, Terebesi was pinned just as the plan described.

In other words, the plaintiff alleges that by devising an

unreasonable operation, the planners ordered, authorized, or

assisted others in subjecting him to excessive force—

allegations that fall squarely within clearly established

Fourth Amendment prohibitions.31 intrusions which are not justified in the circumstances,

or which are made in an improper manner. ʹʺ (quoting

Schmerber v. California

, 384 U.S. 757, 768 (1966)).

Because the raid plan concerned the method used to

execute a search warrant, it was, as a matter of clearly

established constitutional law, subject to Fourth

Amendment protections, irrespective of whether a

seizure was contemplated. 18

The foregoing analysis provides a sufficient basis

on which to affirm the district court ʹ s denial of qualified

immunity at the summary judgment stage. But we

cannot determine as a matter of law at this stage

whether the plan was reasonable or whether, in light of

all the facts, the constitutional principles just elaborated

apply with obvious clarity to the planners ʹ actions. The

answers to these questions depend on the resolution of

several questions of material fact, including whether the

plan provided an appropriate period of time for one of

the occupants to answer the door before the forced

entry, whether the defendants who decided to employ

these tactics understood that only a small quantity of

drugs was sought, and what the defendants understood

or should have understood to be the risks posed in the

service of this warrant. The district court determined

that genuine disputes exist on these points. At this

stage of this litigation, we are bound by the court ʹ s

conclusions. Bolmer

, 594 F.3d at 140–41. The

defendants ʹ appeals are therefore dismissed to the extent

that they allege that the plan was objectively reasonable

18 Of course, as the district court implicitly recognized,

Terebesi ʹ s planning claim must be limited to those aspects of

the raid actually reflected in the operational plan, such as the

ʺ dynamic entry ʺ and the use of the shield to ʺ pin ʺ him. See

Guizan

, 2012 WL 3775876, at *12–*13, 2012 U.S. Dist. LEXIS

123727, at *34–*37. Terebesi does not argue, for example,

that the raid plan contemplated fatally shooting Guizan.32 in light of the facts and circumstances known to each

individual defendant at the time.

C. Use of Stun Grenades

The district court also denied summary judgment

on the plaintiffs ʹ claims with respect to the use of stun

grenades in the raid. The defendants argue that the

application of the Fourth Amendment to the use of such

explosive devices is not clearly established, and that

their use in this case was objectively reasonable. These

arguments relate to defendants Brennan, Phillipson, and

Torresso, 19 who deployed the devices at the rear of the

house, and to defendant Lee, who tossed one through

the front doorway. As explained in the foregoing

section, they also relate to the liability of the planning

defendants.

Stun grenades ʺ detonate with a blinding flash of

light and a deafening explosion. Their function is to

temporarily stun people in a targeted building until

police or military personnel can get inside. ʺ Radley

Balko, Flashbangs under Fire

, Reason, Feb. 17, 2010,

available at http:// reason.com/archives/2010/02/17/

flashbangs

‐ under

‐ fire (last visited June 23, 2014); see also

Steve Ijames, I Learned About Policing from That: Flash

Bang Boom

, LawOfficer, Nov./Dec. 2006, available at

http://www.lawofficer.com/article/magazine

‐ feature/fla

sh

‐ bang

‐ boom (last visited July 1, 2014). A stun

grenade detonation is, indeed its purpose is to be,

extremely loud. The explosion produces high

19 Phillipson did not throw a stun grenade himself, but broke

a window at the rear of the house and separated the curtains

in order to allow the other officers to toss in their grenades.

To the extent that the deployment of the stun grenades could

constitute a constitutional violation, Phillipson may be held

liable as a direct participant for assisting in an unlawful act.

See Provost

, 262 F.3d at 155.33 temperatures and has been known to cause fires, burns,

and other injuries. See United States v. Ankeny

, 502 F.3d

829, 837 (9th Cir. 2007), cert. denied

, 553 U.S. 1034 (2008);

United States v. Folks

, 236 F.3d 384, 387–88 (7th Cir.), cert.

denied

, 534 U.S. 830 (2001); see also Alexis Stevens, Toddler

Critically Injured by ʹ Flash Bang ʹ During Police Search

, Atl.

J. Const.

, May 30, 2014, http:// www.ajc.com/news/news/

breaking

‐ news/toddler

‐ critically

‐ injured

‐ by

‐

flash

‐ bang

‐ during

‐ po/nf9XM/ (last visited June 23,

2014); William K. Rashbaum, Woman Dies after Police

Mistakenly Raid Her Apartment

, N.Y. Times

, May 17, 2003,

at B3 (reporting the death of a woman who suffered a

heart attack after police threw a stun grenade into her

apartment).

As a threshold matter, we conclude that the

Fourth Amendment principles governing police use of

force apply with ʺ obvious clarity, ʺ United States v. Lanier

,

520 U.S. 259, 271 (1997), to the unreasonable deployment

of an explosive device in the home. Cf. United States v.

Jones

, 214 F.3d 836, 837 (7th Cir. 2000) ( ʺ [P]olice cannot

automatically throw bombs into drug dealers ʹ houses,

even if the bomb goes by the euphemism ʹ flash

‐ bang

device. ʹʺ ).

ʺ An officer is not entitled to qualified immunity

on the grounds that the law is not clearly established

every time a novel method is used to inflict injury. ʺ 20

20 It has become commonplace for defendants in excessive

force cases to support their claims to qualified immunity by

pointing to the absence of prior case law concerning the

precise weapon, method, or technology employed by the

police. See, e.g.

, Nelson v. City of Davis

, 685 F.3d 867, 884 (9th

Cir. 2012) (considering the use of ʺ pepperball projectiles ʺ ).

As the Supreme Court has made clear, however, it is not

necessary to find a ʺ case directly on point ʺ in order to show

that the law governing a plaintiff ʹ s claim is clearly

established. al

‐ Kidd

, 131 S. Ct. at 2083. Some measure of34 Mendoza v. Block

, 27 F.3d 1357, 1362 (9th Cir. 1994); see

also Hope

, 536 U.S. at 741 ( ʺ [O]fficials can still be on

notice that their conduct violates established law even in

novel factual circumstances. ʺ ). The prohibition on

unreasonable force has been applied to, inter alia

, the use

of firearms, tear gas, pepper spray, ʺ hog

‐ tying, ʺ tight

handcuffs, police dogs, batons, and Tasers. See generally

1 Ivan E. Bodensteiner & Rosalie Berger Levinson, State

and Local Government Civil Rights Liability § 1:11 n.66

(2013) (collecting cases). In light of these varied

applications, we conclude that no reasonable officer

would think that his or her use of a stun grenade in the

course of executing a search warrant was beyond the

purview of the Fourth Amendment. See Rettele

, 550

U.S. at 614 (excessive force may render a search

unreasonable). We therefore agree with the District of

Connecticut ʹ s view that the principles governing police

use of force set out in Graham v. Connor

, 490 U.S. 386,

must be applied ʺ to claims challenging the use of the

distraction device when executing a search warrant. ʺ

abstraction and common sense is required with respect to

police methods and weapons in light of rapid innovation in

hardware and tactics. See generally Douglas B. McKechnie,

Don ʹ t Daze, Phase, or Lase Me Bro!: Fourth Amendment Excessive

Force Claims, Future Nonlethal Weapons, and Why Requiring an

Injury Cannot Withstand a Constitutional or Practical Challenge

,

60 Kan. L. Rev. 139, 179–87 (2011) (describing innovations in

blinding lasers, ʺ directed energy ʺ weapons, Tasers, and

sound guns); James Byrne & Gary Marx, Technological

Innovations in Crime Prevention and Policing

, J. Police Studs.,

No. 2011–3, at 17, 25 (noting widespread adoption of

innovative non

‐ lethal weapons, including ʺ chemical irritants,

electric shock immobilizing technology, rubber, plastic,

wooden bullet guns, beanbag shotguns, [and] strobe and

acoustical weaponry ʺ ).35 Taylor v. City of Middletown

, 436 F. Supp. 2d 377, 386 (D.

Conn. 2006).

The question, then, is whether the use of stun

grenades was reasonable under the particular

circumstances alleged in this case. See Estate of Escobedo

v. Bender

, 600 F.3d 770, 784–86 (7th Cir.) (finding law on

stun grenades clearly established before 2005 incident),

cert. denied

, 131 S. Ct. 463 (2010); Bing v. City of Whitehall

,

456 F.3d 555, 569–71 (6th Cir. 2006) (analyzing use of

stun grenades under Graham

, but finding that the

officers had qualified immunity in light of the unusual

circumstances surrounding the incident); Boyd

, 374 F.3d

at 778–84 (applying Fourth Amendment reasonableness

test to find use of stun grenades unreasonable, but

finding qualified immunity in light of, inter alia

, the

dangerousness of the suspect involved); United States v.

Myers

, 106 F.3d 936, 940 (10th Cir.) (finding that a

ʺ military

‐ style assault, ʺ involving stun grenades,

ʺ c[a]me dangerously close to a Fourth Amendment

violation, ʺ but was not objectively unreasonable in light

of the suspect ʹ s sometimes violent criminal history), cert.

denied

, 520 U.S. 1270 (1997).

The factors that other courts have considered in

assessing whether a particular use of stun grenades was

reasonable are no different from those that apply to

other forms of force, lethal or non

‐ lethal. In this case,

we think it important to determine whether the officers

first confirmed that they were tossing the stun grenade

into an empty room or open space. See United States v.

Morris

, 349 F.3d 1009, 1012 (7th Cir. 2003) (warning that

the use of stun grenades in ʺ close proximity to persons ʺ

may not be reasonable); Boyd

, 374 F.3d at 779 ( ʺ [I]t

cannot be a reasonable use of force under the Fourth

Amendment to throw [a stun grenade] ʹ blind ʹ into a

room occupied by innocent bystanders absent a strong

governmental interest, careful consideration of36 alternatives and appropriate measures to reduce the risk

of injury. ʺ ); Taylor

, 436 F. Supp. at 386–87 ( ʺ The court

cannot conceive of a set of circumstances that would

permit an officer

. . . to throw a flash

‐ bang device

directly at a person. ʺ ).

It also is more likely that using a stun grenade will

be considered reasonable if the subject of the search or

arrest is known to pose a high risk of violent

confrontation. 21 See, e.g.

, United States v. Boulanger

, 444

F.3d 76, 85 (1st Cir. 2006), cert. denied

, 549 U.S. 906

(suspect had a history of violent crimes); Boyd

, 374 F.3d

at 783 (constitutional violation not clearly established

where officers had reason to believe suspect was armed

and layout of dwelling made entry particularly

dangerous); Molina ex rel. Molina v. Cooper

, 325 F.3d 963,

973 (7th Cir. 2003) (suspect had record of aggravated

assault and access to weapons); cf. Graham

, 490 U.S. at

396 (considering, among other factors, ʺ whether the

suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight ʺ ).

By contrast, we do not think a reasonable officer

would think that it was constitutional to use these

devices in routine searches. Indeed, to the best of our

knowledge, every appellate court to address the issue

has found questionable the use of stun grenades in

routine searches and seizures that do not pose high

levels of risk to the officers or third parties. See, e.g.

,

21 This is not to say that using a stun grenade in such

circumstances is always a sound strategy; a stun grenade

may have little effect on a dangerous subject. See Bob

Parker, The High Cost of a Dynamic Entry

, Police Magazine,

Sept. 30, 2011, http:// www.policemag.com/blog/swat/story/

2011/09/how

‐ a

‐ dynamic

‐ entry

‐ went

‐ sideways.aspx (last

visited July 1, 2014).37 Meyers

, 106 F.3d at 940 ( ʺ Certainly, we could not

countenance the use of [stun grenades] as a routine

matter. ʺ ); Boyd

, 374 F.3d at 782 (quoting Meyers );

Escobedo

, 600 F.3d at 785–86 (stressing that, on the facts

presented at summary judgment, the plaintiff ʺ was not

considered to be a violent, dangerous individual, he was

not the subject of an arrest and he did not pose an

immediate threat to the police or others ʺ ); Molina

, 325

F.3d at 973 (observing that the use of stun grenades is

not appropriate in ʺ most cases ʺ ). These cases, although

not binding on us, confirm the obvious: People do not

automatically lose their right to be free from explosive

devices being thrown into their houses simply because

there is a valid and outstanding search warrant with

respect to the property. The use of a stun grenade must

be justified by the particular risk posed in the execution

of the warrant.

The facts alleged by Terebesi plainly differ from

the kinds of high

‐ risk scenarios, like those cited above,

where courts have found the use of stun grenades to be

objectively reasonable or within the zone protected by

qualified immunity. See, e.g.

, Bing

, 456 F.3d at 559

(suspect was reportedly intoxicated and had fired shots

at neighborhood youths); United States v. Baker

, 16 F.3d

854, 855–56 (8th Cir. 1994) (suspected drug dealer was

engaged in gang activity, owned two Doberman

Pinschers, and had recently barricaded his door in a

manner that made entry difficult).

On the facts presented at the summary judgment

stage of this case, construed in the light most favorable

to Terebesi, all of the stun grenade defendants knew or

should have understood that the search warrant was for

a personal

‐ use quantity of drugs and that there was no

reason to believe that Terebesi posed a risk of violence

or resistance. It is true that, at the SWERT briefing, all

of the officers were told that Terebesi habitually used38 crack cocaine, that he had recently been the victim of a

shotgun attack, that he owned a handgun that was

ʺ unaccounted for, ʺ and that he held what might have

been an unusually strong affection for his pet bird. But

none of these facts suggested that Terebesi was ready to

engage in violence, that he had any record of or

propensity towards violence, that he had immediate

access to weapons, or indeed that he was likely to offer

any resistance at all. We therefore conclude that the

record, as presented at summary judgment, presents

material questions as to whether each defendant ʹ s

decision to deploy stun grenades was reasonable under

clearly established law, in light of his personal

knowledge of the facts and circumstances surrounding

the search. 22 We therefore conclude that the district

court properly denied the defendants qualified

immunity at this stage of the proceedings.

D. Actions of Officers Sweeney and Weir

The district court also determined that defendants

Sweeney and Weir were not entitled to qualified

immunity for their role in executing the raid. 23

22 Apart from the question of whether it was reasonable for

police to deploy stun grenades in executing the warrant to

search Terebesi ʹ s home at all, there are material disputes with

respect to the manner in which the grenades were actually

deployed into the residence. To the extent that the

defendants argue that they exercised all appropriate caution

in the deployment of the grenades, these assertions are based

on disputed facts and must therefore and to that extent be

dismissed for lack of appellate jurisdiction. We note only

that, insofar as the use of stun grenades itself was excessive

in light of clearly established law, this will be sufficient to

establish liability regardless of whether the officers exercised

appropriate care in handling their weapons.

23 The district court based its decision to deny qualified

immunity on this issue entirely on the facts surrounding the39 Sweeney entered the home first and fired the shots that

killed Gonzalo Guizan. He also pinned Terebesi to the

floor with his shield and, according to Terebesi ʹ s

account, struck him in the head with a pistol. Weir

entered the home immediately after Sweeney and fired

one shot into the floor. Terebesi alleges that he suffered

physical injuries from his encounter with Sweeney, and

that, by fatally shooting Guizan in Terebesi ʹ s presence,

Sweeney caused emotional and psychological injury to

Terebesi, aggravating a pre

‐ existing condition of

post

‐ traumatic stress disorder. Terebesi also alleges

that Weir ʹ s actions contributed to these injuries.

As we have explained, the Fourth Amendment

protection against unreasonable uses of force extends to

the manner in which a search is conducted. See Rettele

,

550 U.S. at 614. Depending on the circumstances, a

search may be unreasonable under the Fourth

Amendment even if officers do no more than threaten

the occupants with firearms. See Holland

, 268 F.3d at

1192 ( ʺ The display of weapons, and the pointing of

firearms directly at persons inescapably involves the

immediate threat of deadly force. Such a show of force

should be predicated on at least a perceived risk of

injury or danger to the officers or others, based upon

what the officers know at that time. ʺ ); 2 Wayne R.

LaFave, Search & Seizure § 4.8(h) (5th ed. 2013) ( ʺ Even a

show of force in executing a search warrant, without

actual harm to property or person, may be questioned

officers ʹ encounters with Guizan. As noted above, the estate

of Gonzalo Guizan is no longer a party to this litigation.

Nevertheless, ʺ we may affirm an appealed decision on any

ground which finds support in the record, regardless of the

ground upon which the trial court relied. ʺ Sudler v. City of

N.Y.

, 689 F.3d 159, 178 (2d Cir. 2012) (internal quotation

marks omitted), cert. denied

, 133 S. Ct. 2777 (2013).40 on Fourth Amendment grounds. ʺ ). These principles

apply a fortiori to the discharge of weapons during a

search, such that any reasonable officer must

understand that his decision to fire a gun during the

execution of a search warrant is subject to Fourth

Amendment scrutiny, regardless of whether he hits

anyone.

Whether in this case the officers ʹ actions were

reasonable in light of clearly established law is not a

question we may answer conclusively at this stage of the

proceedings. As the district court recognized, the

reasonableness of Sweeney ʹ s decision to fire his weapon

depends in large part on whether Guizan did in fact

attempt to wrest the weapon away from him, whether

Sweeney was blinded by debris from the stun grenade

explosion, and whether Sweeney reasonably believed he

was taking fire once inside the house. The district court

noted, moreover, that the credibility of Sweeney ʹ s

recollection of these events was subject to genuine

dispute. 24 For the same reasons, we are unable to

conclude at this juncture that Sweeney is entitled to

qualified immunity for his decision to ʺ pin ʺ Terebesi

with his shield. Because Sweeney ʹ s claims to qualified

immunity rely on these disputed facts, we have no

jurisdiction to entertain them at this time.

Weir, for his part, testified that he fired his

weapon because he thought that Guizan was firing at

Sweeney. The credibility of his recollection and the

24 Sweeney has, in turn, raised questions about Terebesi ʹ s

credibility—a matter that is also for the jury to decide and

thus beyond our jurisdiction in this interlocutory appeal.

See, e.g., McClellan v. Smith

, 439 F.3d 137, 148 (2d Cir. 2006);

Cowan

, 352 F.3d at 761 ( ʺ [W]e will disregard any disputed

facts or facts that contradict [the plaintiff ʹ s] version of

events. ʺ ).41 sufficiency of the asserted basis for his mistaken

impression that Guizan was firing at the officers

are—like the factual arguments made by

Sweeney—matters to be determined by the factfinder.

We therefore affirm the decision of the district

court insofar as it determined that defendants Sweeney

and Weir were not entitled to qualified immunity at the

summary judgment stage in connection with their roles

in the raid of Terebesi ʹ s home.

IV. Knock

‐ and

‐ Announce Violations

It is clearly established that, absent exigent

circumstances, the Fourth Amendment requires officers

executing a search warrant to knock at the entrance of

the premises to be searched and to announce their

presence. Hudson v. Michigan

, 547 U.S. 586, 589 (2006)

(noting that the rule has ʺ ancient ʺ roots in the common

law, was codified as a federal statute in 1917, and has

been treated by the Supreme Court as a ʺ command of

the Fourth Amendment ʺ since 1995). Absent exigency,

the police must give an occupant a reasonable time to

reach the door, ʺ a time that will vary with the size of the

establishment, perhaps five seconds to open a motel

room door, or several minutes to move through a

townhouse. ʺ United States v. Banks

, 540 U.S. 31, 39–40

(2003).

The district court determined that the plaintiffs ʹ

knock

‐ and

‐ announce claims could proceed against

Brennan, Edwards, Lee, Phillipson, Sweeney, Torresso,

and Weir. 25 The defendants argue that exigent

25 Brennan, Phillipson, and Torresso deployed the stun

grenades at the rear of the house. Lee was responsible for

ʺ knocking and announcing ʺ the police presence, while

Edwards breached the door. J.A. 342–43. Sweeney and

Weir were the first two officers inside the house; both fired

shots.42 circumstances justified any violation of the

knock

‐ and

‐ announce requirement. 26 Defendants

Brennan, Phillipson, and Torresso argue separately that

their part in the plan, which was limited to breaking a

rear window and throwing two stun grenades into an

empty room, was not subject to the knock

‐ and

‐ announce

requirement, and that it was objectively reasonable for

them to believe that the plaintiff would receive adequate

announcement.

A. Front

‐ Entry Team

The ordinary knock

‐ and

‐ announce requirement

may not apply where officers reasonably suspect that

announcing their presence, ʺ under the particular

circumstances, would be dangerous or futile, or that it

would inhibit the effective investigation of the crime by,

for example, allowing the destruction of evidence. ʺ

Richards v. Wisconsin

, 520 U.S. 385, 394 (1997). We

consider the following factors as ʺ guideposts for

determining the existence of exigent circumstances ʺ :

(1) the gravity or violent nature of the

offense with which the suspect is to be

charged; (2) whether the suspect is

reasonably believed to be armed; (3) a clear

showing of probable cause to believe that

the suspect committed the crime; (4) strong

reason to believe that the suspect is in the

26 The defendants, relying on the testimony of Lee and

Edwards, also assert that the officers in the front

‐ entry team

complied with the knock

‐ and

‐ announce requirement. The

plaintiffs disputed this testimony, pointing to video and

audio evidence suggesting that the officers waited only

approximately five seconds after announcing their presence

to breach the door. Because this argument depends on

disputed issues of material fact, we lack jurisdiction to assess

it.43 premises being entered; (5) a likelihood that

the suspect will escape if not swiftly

apprehended; and (6) the peaceful

circumstances of the entry.

United States v. Moreno

, 701 F.3d 64, 73 (2d Cir. 2012)

(quoting United States v. MacDonald

, 916 F.2d 766, 769–70

(2d Cir. 1990) ( en banc ) (ellipsis omitted)), cert. denied

, 133

S. Ct. 2797 (2013). In addition, we take into account

whether ʺ quick action is necessary to prevent the

destruction of evidence. ʺ United States v. Brown

, 52 F.3d

415, 421 (2d Cir. 1995), cert. denied

, 516 U.S. 1068 (1996).

No one factor is dispositive, and the list here is ʺ merely

illustrative, not exhaustive. ʺ Moreno

, 701 F.3d at 73

(quoting United States v. Gordils

, 982 F.2d 64, 69 (2d Cir.

1992)).

The district court correctly concluded that

qualified immunity was not warranted at the summary

judgment stage. The plaintiffs presented evidence

indicating that all of the defendants understood that the

warrant was for a small amount of drugs meant only for

personal use. The basis for the officers ʹ entry, in other

words, was related to an offense that was neither grave

nor violent. See Moreno

, 701 F.3d at 73. As the

Supreme Court stated in a related context, the

ʺ application of the exigent

‐ circumstances exception in

the context of a home entry should rarely be sanctioned

when there is probable cause to believe that only a

minor offense

. . . has been committed. ʺ Welsh v.

Wisconsin

, 466 U.S. 740, 753 (1984) (rejecting exigency as

a justification for warrantless nighttime entry into home

to arrest drunk

‐ driving suspect).

On the version of the facts most favorable to

Terebesi, then, there was not enough evidence for a

reasonable officer to conclude that the occupants of the

house were so dangerous as to create exigent44 circumstances despite the nature of the offense at issue.

Apart from Terebesi ʹ s perhaps unusually intense ardor

for his pet bird, the defendants point to no evidence in

the record suggesting that Terebesi would actually use

force against the police. 27 Maybe most tellingly, the

officers did not seek or even discuss acquiring a warrant

that would expressly have permitted a ʺ no

‐ knock ʺ entry,

while several officers testified to understanding that the

knock

‐ and

‐ announce rule applied to this operation.

And there is no allegation that any exigency arose after

the operation began. See, e.g.

, Banks

, 540 U.S. at 37–38

(exigency may arise after the officers knock the first

time). Taken together, these facts suggest that the

officers, under the circumstances prevailing at the time

of entry, understood there to be no exigent

circumstances that would permit dispensing with the

knock

‐ and

‐ announce requirement.

For the foregoing reasons, we cannot decide at

this stage of the proceedings whether some or all of the

front

‐ entry defendants will ultimately be entitled to

immunity for the alleged knock

‐ and

‐ announce

violations. The reasonableness of their belief that

Terebesi was dangerous turns on precisely what Barton

said at the SWERT briefing about Terebesi ʹ s gun

ownership and his propensity for violence, what

reasonable conclusions could be drawn from this

information, and whether any of the officers were told

that Terebesi would likely shoot at intruders. We

therefore agree with the district court that the issue of

exigency is not appropriately decided on summary

judgment.

27 Although some officers testified to being told that Terebesi

would shoot at them, Terebesi disputes their credibility.45 B. The ʺ Rake and Break ʺ Team

The defendants comprising the team at the rear of

the house—Brennan, Phillipson, and Torresso—argue

that the knock

‐ and

‐ announce rule did not clearly apply

to their conduct, which was limited to breaking a

window and deploying two stun grenades. Although

Supreme Court case law supports the proposition that

breaking a window for the purposes of deploying a

weapon triggers the knock

‐ and

‐ announce rule, 28 we

need not address that issue here. On what is contained

in the record on summary judgment, we agree with the

district court that the actions of Brennan, Phillipson, and

Torresso may have frustrated any attempt by the

entering officers to comply with the knock

‐ and

‐

announce rule at the front door.

ʺ The knock

‐ and

‐ announce rule gives individuals

ʹ the opportunity to comply with the law and to avoid the

destruction of property occasioned by a forcible entry, ʹʺ

and supplies them with ʺ the ʹ opportunity to prepare

themselves for ʹ the entry of the police. ʺ Hudson

, 547

U.S. at 594 (quoting Richards

, 520 U.S. at 393 n.5). For

this reason, the ʺ knock and announcement must be loud

enough to be heard, and it must be followed by a pause

28 United States v. Ramirez

, 523 U.S. 65, 69–71 (1998)

(concluding that breaking a garage window for the purposes

of pointing a gun inside constitutes an ʺ entry ʺ

, but finding

that exigent circumstances justified dispensing with the

knock

‐ and

‐ announce requirement); see also Rush v. City of

Mansfield

, 771 F. Supp. 2d 827, 870 (N.D. Ohio 2011) (stating

that the detonation of a stun grenade is itself an ʺ unexpected

and threatening intrusion ʺ subject to the

ʺ knock

‐ and

‐ announce ʺ requirement); cf. 18 U.S.C. § 3109

(setting out circumstances under which a federal officer ʺ may

break open any outer or inner door or window of a house, or

any part of a house, or anything therein, to execute a search

warrant ʺ ).46 long enough for someone to answer or come to the

door. ʺ United States v. Leichtnam

, 948 F.2d 370, 374 (7th

Cir. 1991); see also Miller v. United States

, 357 U.S. 301, 311

(1958) (suggesting that officers announced their

presence too quietly to satisfy the purposes of the rule).

As the district court recognized, a series of loud and

confusing announcements from all sides of the house

may frustrate the dignitary and protective purposes of

the rule. Cf. Hudson

, 547 U.S. at 594 (setting out the

purposes for the rule).

The district court correctly found that, on the facts

most favorable to the plaintiffs, Brennan, Torresso, and

Phillipson might unreasonably have frustrated the

purpose of knocking and announcing. After Phillipson

broke the window, Brennan and Torresso deployed two

stun grenades shortly before the officers at the front

door announced their presence. Even after they

detonated, the grenades caused glass to continue to fall

and break while the officers at the front door were

announcing their presence. At the same time, Brennan

began shouting, from the rear of the house, ʺ Police.

Police with a warrant. Hands up. ʺ At this stage of the

case, the district court properly concluded that the

defendants ʹ actions could have disoriented and

confused the occupants of the house, depriving them of

a meaningful opportunity to answer the door.

V. Failure to Intervene

ʺ It is widely recognized that all law enforcement

officials have an affirmative duty to intervene to protect

the constitutional rights of citizens from infringement by

other law enforcement officers in their presence. ʺ

Anderson v. Branen

, 17 F.3d 552, 557 (2d Cir. 1994). An

officer who fails to intercede in the use of excessive force

or another constitutional violation is liable for the

preventable harm caused by the actions of other officers.47 Id. Whether the officer had a ʺ realistic opportunity ʺ to

intervene is normally a question for the jury, unless,

ʺ considering all the evidence, a reasonable jury could

not possibly conclude otherwise. ʺ Id.

We agree with the district court that, insofar as the

raid plan included the use of substantial and violent

force, the plaintiff alleged facts suggesting that every

defendant had the opportunity to intervene. Whether

some of the defendants were in fact unable to intercede

in particular uses of force, either because they were not

involved in the planning process, or because of the

manner, place, and timing of their deployment in the

raid itself, is properly a question for a jury. Id.

VI. Immunity from State Negligence Claims

Connecticut law entitles municipal officers to a

form of ʺ qualified immunity ʺ for the negligent

performance of discretionary acts. Evon v. Andrews

, 211

Conn. 501, 505, 559 A.2d 1131, 1133–34 (1989). The law

provides ʺ three exceptions ʺ to this general rule: (i) where

it was apparent that the act would subject a person to

imminent harm; (ii) where a statute provides a cause of

action against a municipal officer; and (iii) where the act

involves ʺ malice, wantonness or intent to injure. ʺ Id.

The district court declined to grant summary judgment

on the plaintiffs ʹ negligence claims on state

‐ law

immunity grounds, finding that there were genuine

disputes of material fact as to the first and third prongs

of the inquiry. This finding is not subject to

interlocutory appeal. See In re State Police Litig.

, 88 F.3d

111, 127 (2d Cir. 1996).

CONCLUSION

We have considered the parties ʹ remaining

arguments and find them to be without merit. In light

of the foregoing, we REVERSE the judgment of the48 district court insofar it determined that Chief Solomon

was not entitled to qualified immunity from liability for

the decision—standing alone—to activate the SWERT

tactical team. We AFFIRM the judgment insofar as it

held that Terebesi ʹ s claims implicated clearly established

constitutional law with respect to the planning and

approval of the raid, the use of stun grenades, the

actions of Officers Michael Sweeney and Brian Weir, the

alleged knock

‐ and

‐ announce violations, and the duty of

police to intervene in constitutional violations by fellow

officers. In all other respects, the defendants ʹ

arguments on appeal rely on disputed issues of fact and

the appeal is therefore DISMISSED for lack of

jurisdiction. The case is REMANDED for further

proceedings.