Flash Bang Reply

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIA

GAINESVILLE DIVISION

BOUNKHAM "BOU BOU" PHONESAVANH, )a Minor proceeding by and through his Parents )and Natural Guardians as Next Friends, and )BOUNKHAM PHONESAVANH and )ALECIA PHONESAVANH, Individually and )as Parents of BOUNKHAM "BOU BOU" )PHONESAVANH, )

)Plaintiffs, )

)v. ) CIVIL ACTION FILE

) NO.: 2:15-CV-0024-RWSCHARLES LONG in his Individual Capacity )MATTHEW WURTZ, in his Individual )Capacity, JASON STRIBLING, in his )Individual Capacity, NIKKI AUTRY, in her )Individual Capacity, MURRAY KOGOD, in his )Individual Capacity, JONATHAN ROBERTS, )in his Individual Capacity, SHERIFF JOEY )TERRELL, in his Individual Capacity, )PAUL CHESEBORO, in his Individual )Capacity, and JOHN DOE, in his Individual )Capacity, )

)Defendants. )

DEFENDANTS CHARLES LONG, MATTHEW WURTZ, JASONSTRIBLING, MURRAY KOGOD, AND SHERIFF JOEY TERRELL'S

ANSWER AND DEFENSES TO PLAINTIFFS' COMPLAINT FORDAMAGES

COME NOW defendants Charles Long, Matthew Wurtz, Jason Stribling,

Murray Kogod, and Sheriff Joey Terrell (collectively referred to herein as "these

Case 2:15-cv-00024-RWS Document 16 Filed 03/30/15 Page 1 of 39

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defendants"), by and through the undersigned counsel, and submits this, their

answer and defenses to plaintiffs' complaint for damages (Doc. 1), showing the

Court as follows:

FIRST DEFENSE

Plaintiffs' complaint fails to state a claim against these defendants upon

which relief can be granted.

SECOND DEFENSE

Responding to the numbered paragraphs of plaintiffs' complaint, these

defendants answer as follows:

1.

No response is required by these defendants to the allegations contained in

paragraph 1 of plaintiffs' complaint. To the extent any response is required, these

defendants deny in the form and manner alleged the allegations contained in

paragraph 1 of plaintiffs' complaint and specifically deny that they violated

Georgia law or any of plaintiffs' constitutional rights.

ANSWER TO INTRODUCTION

2.

Responding to the allegations contained in paragraph 2 of plaintiffs'

complaint, these defendants admit that on May 28, 2014, law enforcement officers,


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while acting under color of law, executed a "no knock" search warrant at a

residence located in Habersham County, Georgia. These defendants further admit

that after the exterior door was breached, a noise flash diversionary device was

deployed into the residence and that said device inadvertently landed in a playpen

occupied by plaintiff Bounkham "Bou Bou" Phonesavanh. These defendants

further admit that plaintiff Bounkham "Bou Bou" Phonesavanh sustained injuries

from the noise flash diversionary device. These defendants deny the remaining

allegations contained in paragraph 2 of plaintiffs' complaint including specifically

denying they did anything unreasonable.

3.

These defendants deny the allegations contained in paragraph 3 of plaintiffs'

complaint including specifically denying their actions were unreasonable or

incompetent.

ANSWER TO JURISDICTION AND VENUE

4.

The allegations contained in paragraph 4 of plaintiffs' complaint constitute a

legal conclusion to which no response is required. To the extent any response is

required, these defendant admit that this Court generally has subject matter

jurisdiction over federal question claims pursuant to 28 U.S.C. §§ 1331 and 1343.


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These defendants further admit that this Court generally has the discretion to

exercise supplemental jurisdiction over state-law claims pursuant to 28 U.S.C.

§ 1367. These defendants deny the remaining allegations contained in paragraph 4

of plaintiffs' complaint.

5.

The allegations contained in paragraph 5 of plaintiffs' complaint constitute a

legal conclusion to which no response is required. To the extent any response is

required, these defendants admit that venue is proper.

ANSWER TO PARTIES

6.

These defendants can neither admit nor deny the allegations contained in the

first sentence of paragraph 6 of plaintiffs' complaint for want of sufficient

information to form a belief as to the truth thereof, and put plaintiffs upon strict

proof of the same. These defendants deny in the form and manner alleged the

remaining allegations contained in paragraph 6 of plaintiffs' complaint.

7.


complaint, these defendants admit only that plaintiff Bounkham "Bou Bou"

Phonesvanh is a minor and that Bounkham and Alecia Phonesavanh purport to


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assert claims in this action on his behalf. These defendants deny the remaining

allegations contained in paragraph 7 of plaintiffs' complaint including specifically

denying search at issue was unreasonable and/or unconstitutional.

8.



defendants deny the allegations contained in paragraph 8 of plaintiffs' complaint

and specifically deny any and all liability for the claims asserted.

9.



defendants admit only that plaintiff Bounkham "Bou Bou" Phonesavanh sustained

injuries from the noise flash diversionary device. These defendants deny the

remaining allegations contained in paragraph 9 of plaintiffs' complaint and

specifically deny any and all liability for the claims asserted.

10.


complaint, these defendants admit that Long is a Sheriff's reserve deputy with the

Habersham County Sheriff's Department and was acting in the course and scope of


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his employment, as a member of the Special Response Team, and under color of

state law at all times material to this action. These defendants further admit that

Long deployed a diversionary device into the subject residence. These defendants

deny the remaining allegations contained in paragraph 10 of plaintiffs' complaint.

11.

These defendants deny the allegations contained in paragraph 11 of

plaintiffs' complaint.

12.


complaint, these defendants admit that Wurtz is a Sergeant with the Habersham

County Sheriff's Department and was acting in the course and scope of his

employment, as a member of the Special Response Team, and under color of state

law at all times material to this action. These defendants further admit that

Sergeant Wurtz instructed Long regarding his discretionary duties during the pre-

operational planning regarding deployment of the noise flash diversionary device

into the residence. These defendants deny the remaining allegations contained in

paragraph 12 of plaintiffs' complaint.


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13.



14.


complaint, these defendants admit that Stribling is a Sheriff's reserve deputy with

the Habersham County Sheriff's Department and was acting in the course and

scope of his employment, as a member of the Special Response Team, and under

color of state law at all times material to this action. These defendants deny the


15.

These defendants admit the allegations contained in paragraph 15 of


16.


complaint, these defendants admit upon information and belief that Autry was with

the Habersham County Sheriff's Department, a member of NCIS, and was acting in

the course and scope of her employment and under color of state law at all times

material to this action. These defendants further admit that Autry applied for and


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obtained the search warrant that is the subject of this action. These defendants

deny the remaining allegations contained in paragraph 16 of plaintiffs' complaint.

17.

These defendants can neither admit nor deny the allegations contained in

paragraph 17 of plaintiffs' complaint for want of sufficient information to form a

belief as to the truth thereof, and put plaintiffs upon strict proof of the same.

18.


complaint, these defendants admit only that Kogod was the acting commander of

the NCIS Task Force on the date of the incident. These defendants deny the


19.

These defendants deny in the form and manner alleged the allegations

contained in paragraph 19 of plaintiffs' complaint.

20.

These defendants deny upon information and belief the allegations contained

in paragraph 20 of plaintiffs' complaint.


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21.




22.



23.




24.



25.




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ANSWER TO FACTUAL ALLEGATIONS

26.



27.



28.



29.



30.

These defendants admit only that pursuant to the pre-operation plan a noise

flash diversionary device was deployed during the execution of a "no knock"

search warrant at 182 Lakeview Heights Circle in Habersham County, Georgia on

May 28, 2014 which is located within the Gainesville Division of the Northern


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District of Georgia. These defendants deny the remaining allegations contained in


31.



32.


complaint, these defendants state that the affidavit and application for a search

warrant speak for itself. These defendants deny the remaining allegations


33.



34.


complaint, these defendants state that the affidavit and application for a search

warrant speak for itself. These defendants deny the remaining allegations



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35.



36.




37.



38.


complaint, these defendants admit that there were approximately five adults and

four children in the subject residence at the time the noise flash diversionary devise

was deployed. These defendants can neither admit nor deny whether the adults

and children were asleep at the time of the deployment for want of sufficient


proof of the same.


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39.




40.


complaint, these defendants admit only that defendant Charles Long deployed a

diversionary device into the subject residence pursuant to the pre-operational plan.

These defendants deny the remaining allegations contained in paragraph 40 of


41.



Phonesavanh sustained injuries from the noise flash diversionary device. These

defendants deny the remaining allegations contained in paragraph 41 of plaintiffs'

complaint.

42.




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Phonesavanh sustained injuries from the noise flash diversionary device. These

defendants can neither admit nor deny the remaining allegations contained in



43.

These defendants admit that attached to plaintiffs' complaint as Exhibit B is

a photograph of plaintiff Bounkham "Bou Bou" Phonesavanh, but specifically

deny that Exhibit B accurately depicts the injuries allegedly sustained by

Bounkham "Bou Bou" Phonesavanh.

44.




45.

These defendants deny that portion of the facts as alleged in paragraph 45 of

plaintiffs' complaint that evidence of the presence of children at the residence was

obvious to anyone who went in or near the residence where the warrant was the be

executed. These defendants can neither admit nor deny the remaining allegations

contained in paragraph 45 of plaintiffs' complaint for want of sufficient


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proof of the same.

46.



47.




48.



49.



50.




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51.


plaintiffs' complaint including denying that the noise flash diversionary device was

deployed in violation of any training guideline.

52.



53.


plaintiffs' complaint including denying that the force used in this matter was used

incompetently, willfully, and unreasonably.

54.

These defendants admit that portion of the allegations contained in

paragraph 54 of plaintiffs' complaint that defendant Long deployed the noise flash

diversionary device as part of his discretionary duties after defendant Wurtz

presented defendant Long with his discretionary duties in the pre-operational plan.

These defendants deny the allegations contained in paragraph 54 of plaintiffs'

complaint.


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55.



56.


complaint, these defendants admit only that the potential use of the noise flash

diversionary device was pre-planned by Sergeant Wurtz due to the violent history

of Wanis Thonetheva, the possibility of weapons on scene due to information

known by the officers involved in the execution of the search warrant, and in

accordance with reasonable precautions and proper police procedure. These

defendants deny the remaining allegations contained in paragraph 56 of plaintiffs'

complaint including the allegation that the Fourth Amendment was violated.

57.



58.




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59.


complaint, these defendants state that the officers properly utilized the discretion

afforded to them by law in the manner in which the no-knock search warrant was

executed. These defendants deny the remaining allegations contained in paragraph

59 of plaintiffs' complaint.

60.


plaintiffs' complaint including any allegation that the Fourth Amendment was

violated.

61.

The allegations contained in paragraph 61 of plaintiffs' complaint constitute

a legal conclusion to which no response is required. To the extent any response is

required, these defendants deny in the form and manner alleged the allegations


62.




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63.


complaint, these defendants state that Exhibit C attached to plaintiffs' complaint

speaks for itself. These defendants can neither admit nor deny whether plaintiffs

have provided ante litem notice of their claims to all of the constituent members of

the Mountain Judicial Circuit NCIS for want of sufficient information to form a


64.


plaintiffs' complaint and specifically deny that they violated Georgia law or any of

plaintiffs' constitutional rights.

ANSWER TO COUNT ONE(AGAINST DEFENDANTS LONG, STRIBLING, WURTZ, ROBERTS,

AUTRY, CHESEBORO AND DOE)

65.


complaint, these defendants hereby incorporate by reference as if fully set forth

verbatim herein their answers and responses previously made to paragraphs 1

through 64 above.


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66.


plaintiffs' complaint and specifically deny any and all liability for the claims

asserted.

ANSWER TO COUNT TWO AGAINST DEFENDANTS AUTRY ANDKOGOD UNDER 42 U.S.C. § 1983

67.




through 66 above.

68.


complaint, these defendants state that Exhibit A attached to plaintiffs' complaint

speaks for itself. These defendants deny the remaining allegations contained in


69.




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70.



71.



72.



73.


complaint, these defendants state that Exhibit A attached to plaintiffs' complaint

speaks for itself. These defendants deny upon information and belief the


74.


complaint, these defendants state that the affidavit speaks for itself. These

defendants can neither admit nor deny whether plaintiffs "were visiting guests of

the owner of the premises driving a van with a clearly visible out of state license


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plate" for want of sufficient information to form a belief as to the truth thereof, and

put plaintiffs upon strict proof of the same. These defendants deny the remaining

allegations contained in paragraph 74 of plaintiffs' complaint.

75.



76.


complaint, these defendants deny upon information and belief that false and

misleading information was used in the search warrant application. These

defendants can neither admit nor deny the remaining allegations contained in



77.



78.


complaint, these defendants admit the first sentence of paragraph 78 of plaintiffs'


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complaint. These defendants further admit that Thonetheva was later arrested

without the use of a noise flash diversionary device. These defendants deny the


79.


complaint, these defendants admit that Kogod was Autry's supervisor at all times

pertinent to this action. These defendants deny the remaining allegations contained


80.



81.



82.

These defendants deny that any false or misleading information was

contained in the search warrant and defendant Kogod was demoted and removed

from his position as Commander of the Task Force. These defendants can neither

admit nor deny the remaining allegations contained in paragraph 82 of plaintiffs'


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complaint for want of sufficient information to form a belief as to the truth thereof,

and put plaintiffs upon strict proof of the same.

83.


complaint, these defendants state that Exhibit D of plaintiffs' complaint speaks for

itself. These defendants can neither admit nor deny the remaining allegations

contained in paragraph 83 of plaintiffs' complaint for want of sufficient


proof of the same.

84.


plaintiffs' complaint including specifically denying the search warrant at issue was

improperly obtained and/or the search itself was illegal.

ANSWER TO COUNT THREE ASSAULT AND BATTERY(AGAINST ALL DEFENDANTS EXCEPT TERRELL)

85.




through 84 above.


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86.


plaintiffs' complaint and specifically deny that Exhibit B attached to plaintiffs'

complaint accurately depicts the injuries allegedly sustained by Bounkham "Bou

Bou" Phonesavanh; and that defendant Long blindly and incompetently deployed

the noise flash diversionary device.

ANSWER TO COUNT FOUR ASSAULT AND BATTERY INVOLVINGDAMAGES TO BOUNKHAM AND ALECIA PHONESAVANH (AGAINST

ALL DEFENDANTS EXCEPT SHERIFF TERRELL)

87.




through 84 above.

88.




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ANSWER TO COUNT FIVE NEGLIGENT BREACH OF MINISTERIALDUTY (AGAINST ALL DEFENDANTS)

89.




through 84 above.

90.



91.



92.



93.




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94.


complaint, these defendants admit that they are trained generally not to deploy a

diversionary device "blindly" into a room. These defendants deny the remaining

allegations contained in paragraph 94 of plaintiffs' complaint and specifically deny

that any proper police practices were violated.

95.



ANSWER TO COUNT SIX INTENTIONAL INFLICTION OFEMOTIONAL DISTRESS (AGAINST ALL DEFENDANTS EXCEPT

TERRELL)

96.




through 95 above.


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97.


plaintiffs' complaint and specifically deny that they violated Georgia law or any of

plaintiffs' constitutional rights.

ANSWER TO COUNT SEVEN (BREACH OF CONTRACT AGAINST ALLDEFENDANTS)

98.




through 84 above.

99.

These defendants admit that portion of the facts contained in paragraph 99 of

plaintiffs' complaint that upon entering the residence, one or more members of the

search team recognized the need for immediate medical care of one of the people

present and immediate treatment was begun. These defendants deny in the form

and manner alleged the remaining allegations contained in paragraph 99 of



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100.



101.



102.



103.



104.



105.


plaintiffs' complaint and specifically deny any liability for the payment of medical

expenses.


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106.


paragraph 106 of plaintiffs' complaint. To the extent any response is required,

these defendants deny in the form and manner alleged the allegations contained in

paragraph 106 of plaintiffs' complaint and specifically deny that they violated any

of plaintiffs' constitutional rights or rights under Georgia law or that the officers

acted incompetently in any manner.

107.



required, these defendants deny the allegations contained in paragraph 107 of


108.



required, these defendants deny the allegations contained in paragraph 108 of



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109.


plaintiffs' complaint including that the officers acted incompetently or that

plaintiffs' due process rights were violated.

110.


plaintiffs' complaint including that the officers acted incompetently.

ANSWER TO COUNT EIGHT ATTORNEY FEES (ALL DEFENDANTS)

111.




through 84 above.

112.



these defendants deny in the form and manner alleged the allegations contained in

paragraph 112 of plaintiffs' complaint and specifically deny that plaintiffs are

entitled to an award of attorney's fees against these defendants.


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113.



these defendant deny in the form and manner alleged the allegations contained in

paragraph 113 of plaintiffs' complaint and specifically deny that plaintiffs are

entitled to an award of attorney's fees against these defendants.

ANSWER TO COUNT NINE PUNITIVE DAMAGES (ALL DEFENDANTS)

114.




through 84 above.

115.



116.

Responding to the allegations contained in the unnumbered paragraph of

plaintiffs' complaint beginning WHEREFORE, and constituting plaintiffs' prayer

for relief, these defendants deny all such allegations, including subparagraphs a.


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through i. thereof, and specifically deny that plaintiffs are entitled to any of the

relief requested from them in form, type, or amount, under any theory at law or in

equity.

117.

Except as expressly admitted, denied, or otherwise responded to, these

defendants deny all allegations contained in plaintiffs' complaint.

THIRD DEFENSE

These defendants show that under all of the facts and circumstances, their

conduct was discretionary in nature, was not in violation of any clearly established

constitutional right of which a reasonable officer would have had fair notice, and

was likewise objectively reasonable, thereby entitling these defendants to qualified

immunity.

FOURTH DEFENSE

These defendants did not breach any duty they may have owed to plaintiffs

based upon the allegations contained in plaintiffs' complaint.

FIFTH DEFENSE

Plaintiffs' damages, if any, resulted solely from the voluntary and intentional

conduct of plaintiffs or others and not from any conduct of these defendants or

those over whom these defendants had any control.


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SIXTH DEFENSE

Plaintiffs' damages, if any, were caused by the independent acts and

decisions of persons and entities other than these defendants or those over whom

these defendants had some legal right of control.

SEVENTH DEFENSE

To the extent as may be shown by the evidence through discovery, these

defendants show that plaintiffs' damages, if any, were directly and proximately

caused by the contributory and comparative negligence of plaintiffs and their

failure to exercise ordinary care.

EIGHTH DEFENSE

These defendants show that all of their alleged actions or inactions with

respect to plaintiffs were carried out in the good faith performance of their official,

discretionary duties and without actual malice or actual intent to cause injury to

plaintiffs. Accordingly, these defendants are entitled to official immunity under

Georgia law.

NINTH DEFENSE

No act or omission of these defendants either proximately caused or

contributed to any damages allegedly suffered by plaintiffs; therefore, plaintiffs

have no right of recovery against these defendants.


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TENTH DEFENSE

To the extent as may be shown by the evidence through discovery, plaintiffs'

injuries and damages, if any, were caused by the deliberate, criminal conduct of

plaintiffs, and such criminal conduct supersedes any and all negligence or liability,

if any, on the part of these defendants.

ELEVENTH DEFENSE

To the extent as may be shown by the evidence through discovery, these

defendants also assert the affirmatives defenses of assumption of the risk, failure to

avoid consequences, laches, failure to mitigate damages, last clear chance and

sudden emergency.

TWELFTH DEFENSE

These defendants show that plaintiffs were not deprived of any

constitutionally protected life, liberty, or property interest without due process of

law, nor did these defendants violate the rights of plaintiffs under any provisions of

or amendments to the United States Constitution, any other United States laws, any

provisions of or amendments to the Georgia Constitution, or any other Georgia

laws.


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THIRTEENTH DEFENSE

These defendants reserve the right to plead and prove such other defenses as

may become known to them during the course of their investigation and discovery.

WHEREFORE, having fully listed their defenses and having fully answered

the complaint, these defendants pray as follows:

(a) That judgment be entered in favor of these defendants and against

plaintiffs on the complaint;

(b) That the costs of this action, including attorney's fees, be cast against

plaintiffs; and

(c) That the Court grant such other and further relief as it may deem just

and proper.

THESE DEFENDANTS DEMAND TRIAL BY JURYON ALL ISSUES SO TRIABLE.

This 30th day of March, 2015.

FREEMAN MATHIS & GARY, LLP

/s/ Wayne S. MelnickTheodore FreemanGeorgia Bar No. [email protected] S. MelnickGeorgia Bar No. [email protected]


mailto:[email protected]


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A. Ali SabzevariGeorgia Bar No. [email protected]

Attorneys for Defendants Charles Long,Matthew Wurtz, Jason Stribling, MurrayKogod, and Sheriff Joey Terrell

100 Galleria ParkwaySuite 1600Atlanta, Georgia 30339-5948(770) 818-0000 (telephone)(770) 937-9960 (facsimile)



CERTIFICATE OF SERVICE

I hereby certify that I have this day electronically submitted the foregoing

DEFENDANTS CHARLES LONG, MATTHEW WURTZ, JASON

STRIBLING, MURRAY KOGOD, AND SHERIFF JOEY TERRELL'S

ANSWER AND DEFENSES TO PLAINTIFFS' COMPLAINT FOR

DAMAGES to the Clerk of Court using the CM/ECF system which will

automatically send electronic mail notification of such filing to counsel of record

who are CM/ECF participants:

Richard W. HendrixSteven R. Wisebram

Finch McCranie, LLP225 Peachtree Street, NE

1700 South TowerAtlanta, GA 30303

Mawuli Mel DavisCandice D. McKinley

The Davis Bozeman Law Firm, P.C.4153-B Flat Shoals Parkway, Suite 204

Decatur, GA 30034

John A. DickersonAustin L. Perry

McClure, Ramsay, Dickerson & Escoe, LLPP.O. Drawer 1408Toccoa, GA 30577


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M. Steven CampbellCampbell & Campbell

P.O. Box 489Cornelia, GA 30531

This 30th day of March, 2015.

FREEMAN MATHIS & GARY, LLP

/s/ Wayne S. MelnickWayne S. MelnickGeorgia Bar No. [email protected]

Attorneys for Defendants Charles Long,Matthew Wurtz, Jason Stribling, MurrayKogod, and Sheriff Joey Terrell

100 Galleria ParkwaySuite 1600Atlanta, Georgia 30339-5948(770) 818-0000 (telephone)(770) 937-9960 (facsimile)1252407



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