Infant is to Blame for Deliberate Criminal Conduct, Assumption of Risk,
and Failure to Avoid Consequences
So said the response filed by lawyers representing the officers and the Habersham County Sheriff Department. Infant Bou-Bou Phonesavanh, who we wrote about last year, was the lead plaintiff in a lawsuit attempting to recover about a million dollars in medical bills caused by a flash bang grenade thrown into Bou Bou's crib. Below is the relevant part of the filing:
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
Bou Bou's family had been staying at the house after their own home burned to the ground. The infant was about 18 months old, couldn't speak, walking wobble legged but that didn't stop the Sheriff's lawyers from claiming "deliberate criminal conduct" that justified the 2:00 am no knock warrant. Merely by sleeping in a home the baby exposed himself to having a flash bang grenade thrown into his crib. Burning at 2000 to 3500 degrees Fahrenheit the flash bag grenade is considered a destructive device by the ATF. Bou Bou actually impeded the trajectory of that grenade, refused to flee from his crib, and thus failed to avoid the consequences of the SWAT Team attack.
An anonymous tip that $50.00 in drugs had been sold led to the 2:00am home invasion in Cornelia Georgia. Nothing illegal was found in the raid. The front yard littered with toys was ignored by the officers and while the search warrant was issued in the early afternoon no effort was made to watch the home to determine if the suspect was present or if there were any children living in the home. Like the Waco debacle, the local sheriff had ample opportunities to arrest the suspect during daylight hours and without violence and as the suspect was not present at the time of the raid the entire home invasion was ill conceived and ill led. Wanis Thonetheva was the suspect named in the warrant and was arrested a few hours later without incident.
Initially the father of the child had noticed the empty crib along with the blood. Having been thrown to the floor and shackled the parents were not allowed to check on the screaming child and the child was seized and taken away for emergency treatment, allegedly for a dislodged tooth. The parents weren't told of the horrific injuries caused by the exploding grenade and only found out much later when they found out that the child was in a coma. In fact the child suffered severe blast injuries and burns to the face and chest, with twenty percent of the upper lip missing, nose separated from the bones, and a large burn into the chest.
Dislodged tooth or blown off face it was determined by the Sheriff office that the baby was responsible for its injuries. Named as the lead plaintiff in the federal lawsuit the lawyers set out to prove to the court that Bou Bou was indeed responsible for not foreseeing the possibility that a SWAT team wouldn't attack at 2:00 am. The idea was to claim that the criminal conduct of Bou Bou superseded any negligence and liability of those attacking the home.
Anonymous tip from a petty criminal, no evidence of any illegal activity found in the raid, home torn apart, baby burned badly and nearly killed and no one is to blame except for the victims. A local Grand Jury had refused to hold the Sheriff and SWAT team members accountable and the county government reneged on a promise to pay the million dollars in medical bills so the family filed suit.
