Pity the Poor Stormtroopers: Baby Bou-Bou Ambushed Them (Updated, May 21)

The truth in black and white -- but don't believe it: Sheriff Joey insists that this is the face of a criminal.

(See the update at the bottom of the essay, or click here.)

It was the baby’s fault that he was nearly burned to death in his own crib. 

Bou-Bou Phonesavanh was barely a year and a half old, just learning to walk, and unable to speak, but those limitations didn’t stop him from engaging in “deliberate, criminal conduct” that justified the 2:00 a.m. no-knock SWAT raid in which he was nearly killed. 

The act of sleeping in a room about to be breached by a SWAT team constituted “criminal” conduct on the part of the infant. At the very least, the infant was fully liable for the nearly fatal injuries inflicted on him when Habersham County Sheriff’s Deputy Charles Long blindly heaved a flash-bang grenade – a “destructive device,” as described by the ATF, that when detonated burns at 2,000-3,500 degrees Fahrenheit – into the crib. 

The detonation of a flash-bang grenade.

Merely by being in that room, Bou-Bou had assumed the risk of coming under attack by a SWAT team. By impeding the trajectory of that grenade, rather than fleeing from his crib, Bou-Bou failed to “avoid the consequences” of that attack. 

In any case, Bou-Bou, along with his parents and his siblings, are fully and exclusively to blame for the injuries that nearly killed the child and left the family with more than one million dollars in medical bills. The SWAT team that invaded the home in Cornelia, Georgia on the basis of a bogus anonymous tip that a $50 drug transaction had occurred there is legally blameless. 

This is the defense presented by Haberham County Sheriff Joey Terrell and his comrades in their reply to a federal lawsuit filed last February on behalf of Bou-Bou Phonesavanh and his family. 

A tax-subsidized settlement was reached about a month ago in which the National Fire Insurance Company will pay $964,000 to the family -- a little more than $538,000 for medical expenses, and multiple installments of $200,000 to the infant after he turns 18 in 2033. This arrangement will leave the family facing at least a half-million dollars in current medical expenses, a figure that will be matched or eclipsed by future costs incurred by Bou-Bou's ongoing medical treatment.

In familiar fashion, nobody responsible for this crime will be compelled to make restitution, or be held accountable for the nearly fatal injuries inflicted on the child – and the significant but non-life-threatening injury suffered by his father -- during the 2:00 a.m. home invasion that took place nearly a year ago.

Nearly every lawsuit begets a “defendant’s reply” disputing all of the factual allegations and legal claims presented by the plaintiffs. Where the defendants are law enforcement officers, the objective is to build a case that the actions of the officers were “reasonable” and in compliance with established “policies and procedures” – and thus protected by “qualified immunity.” From this perspective, the assailants are innocent of all liability even though they did everything wrong – and the victims are fully to blame even though they did nothing wrong. The reply filed on behalf of Sheriff Joey's deranged deputies will serve as a legal clinic for other departments involved in similar Soviet-grade atrocities in the future.

No evidence of any illegal conduct was found at the home as a result of the raid. The front yard and driveway of the residence abounded in evidence that children lived there – evidence so clear and compelling that even a police officer would have recognized it. The search and arrest warrant was issued at about 2:00 in the afternoon on May 27; this offered plenty of time for the vigilant and capable personnel of the Habersham County Sheriff’s Office to conduct surveillance of the targeted residence and even to arrest the suspect in more conventional fashion, assuming that this was necessary and justified. 

The subject of the warrant, Wanis Thonetheva, was not at the residence when the stormtroopers arrived. He was arrested on narcotics charges several hours later, in broad daylight and in unremarkable fashion, “at his actual place of residence, without any resistance and without the use of a flashbang stun grenade,” the lawsuit recalls.

At the time that arrest was being made, Bou-Bou’s parents were just absorbing the horror of what had been done to the infant by the assailants who had broken into their temporary home without cause and kidnapped the gravely wounded child. 

Bou-Bou’s father -- in agony from a torn rotator cuff that resulted from being assaulted, thrown to the floor, and shackled by one of the invaders -- noticed some blood in the empty crib. The screaming child had been seized by the berserkers and taken away. The frantic parents were not allowed access to the traumatized and bleeding child—“officer safety” uber alles, you know. To cover the abduction, one of the officers on the scene did what comes naturally to highly trained police officers: he hastily improvised a self-serving lie. 

“The parents were told by officers on the search team that their son had a tooth dislodged as a result of the search and that the blood that the parents saw in or about the area of the crib was due to the alleged tooth issue,” recounts the lawsuit. The parents “did not know the extent of their son’s injuries (and were not provided truthful information about them by the Defendants) until they were told at the Hospital where their son was taken that he was in a coma.”

Yes, it is possible that one of the infant’s newly-cut teeth had been “dislodged” by the stun grenade. What the people responsible for that act of abhorrent criminal violence did not mention was that the toddler also suffered “severe blast burn injuries to the face and chest; a complex laceration of the nose, upper lip and face, twenty percent of the right upper lip [was] missing; the external nose [was] separated from the underlying bone; and a large avulsion burn into the chest with a resulting left pulmonary contusion and sepsis.”

Sheriff Joey’s underlings told Bou-Bou’s parents that they had knocked out one of the baby’s teeth. They actually blew off his face and gouged a hole in his chest. Exhibit B in the lawsuit is an unbearable hospital photograph of the child in a medically induced coma immediately after the attack. The Defendant’s reply to that piece of evidence is a denial that the photograph “accurately depicts the injuries allegedly sustained” by the infant.

Even if that photograph is a reliable depiction of those injuries, the baby only had himself to blame, according to Sheriff Joey and his band of privileged cretins. 

Bounkham “Bou-Bou” Phonesavanh is the lead plaintiff in the lawsuit, with his parents listed as co-plaintiffs. When the defendants claim that the damages caused to the child, “if any,” were “directly and proximately caused by the contributory and comparative negligence of plaintiffs and their failure to exercise ordinary care,” they are blaming the baby for not foreseeing the possibility that he would be attacked by a SWAT team at 2:00 a.m. and burned alive in his crib.

When the defendants seek to deflect blame by claiming that “the deliberate, criminal conduct of [the] plaintiffs … supersedes any and all negligence or liability, if any, on the part of these defendants,” they are pretending to believe that the 19-month-old child was part of a criminal conspiracy. 

In its “eleventh defense,” Sheriff Joey and his Brownshirts let everything fly, invoking the doctrines of “assumption of the risk, failure to avoid consequences, laches, failure to mitigate damages, last clear chance, and sudden emergency.” 

Reduced to its putrid essence, this compound defense amounts to a single claim: If you live anywhere within the claimed jurisdiction of a federally subsidized einsatzgruppe like the Mountain Judicial Circuit Narcotics Criminal Investigation and Suppression Team, then you are fair game for an after-midnight military raid, and you have only yourself to blame once it happens. 

It doesn’t matter that the raid is the product of a dishonestly obtained search warrant issued on the basis of an anonymous tip from a petty criminal, or that no evidence of illegal activity was ever discovered. If your home is torn apart and your infant is nearly killed, you alone are responsible, and the gallant agents of public order cannot be held liable. This is true even in cases like that of the Phonesavankh family, who sought a temporary home with a relative in Georgia after their house in Wisconsin was claimed by a fire. 

This is all covered by the “Sucks to be you” provision of the “If you’re not a cop, you’re little people” doctrine.

Looking for other babies to burn, deputy?

Bobbing like feculent flotsam in the puddle of sewage that is the defendants’ “eleventh defense” is the term “laches,” which refers to an impermissible delay by a plaintiff in bringing forward a claim for damages.

This obviously doesn’t apply to the conduct of the Phonesavankh family in this case. They filed a timely notice of tort claim, and then proceeded to file the lawsuit after the Habersham County grand jury refused to hold the Sheriff and his minions accountable – and after the county government broke its promise to pay for Bou-Bou’s medical treatment.

The origins and usage of that obscure and archaic legal term do offer some insight about the way Bou-Bou’s would-be murderers see themselves, and their victim.

“Laches” is a term embodying the ancient legal maxim that “Equity favors the vigilant, and not those who have slumbered on their rights.” Defendants who appeal to this oft-cited and little-applied concept are accusing plaintiffs of subjecting them to a form of “legal ambush.”

 What Sheriff Joey and his cornpone chekists are claiming, in effect, is that while he was sleeping, Baby Bou-Bou ambushed them.

(This post has been updated to include details of the settlement.)

Update, May 21

Some commenters have asked for specific quotes from the "Defendants' Reply" blaming Bou-Bou for the injuries he suffered, and accusing him of negligence or "criminal" conduct. For those interested in reading full text of that reply, the document is found in a Scribd archive, which is accessible through links in the essay above.

Under the "Four Corners" doctrine, which applies to wills, contracts, and other legal instruments, the author's intention in composing such a document is defined by the plain meaning of the text. If a claim or assertion isn't found within the four corners of that document, it can't be considered. The "Defendants' Reply" made several accusations about the supposed conduct of the "plaintiffs"; nowhere within that text is an effort made to distinguish Bou-Bou from the other defendants. 

The lead plaintiff in the lawsuit is the infant, Bounkham Phonesavanh. The Defendants' Reply imputes "deliberate, criminal conduct" to all of the plaintiffs without exception; it is an assertion of joint and several liability on the part of the infant and his parents (described as his "Natural Guardians as Next Friends").

With this in mind, read the "Seventh Defense" on page 34, in which the defendants assert 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."

They did not exempt Bou-Bou from that charge. They couldn't -- he is the chief plaintiff.

The same applies to the claims made in the Tenth Defense (see page 35) that the injuries and damges "were caused by the deliberate, criminal conduct of plaintiffs."

Omission of the definite article from those statements is a failed attempt at a semantic dodge: If the intent were to exempt Bou-Bou, the author of this scabrous brief would have specified which of the plaintiffs had supposedly engaged in "criminal conduct." Absent that specification, the defense mounted on behalf of Sheriff Joey and his minions focused squarely on the lead plaintiff, the infant who was nearly murdered in his sleep.

(My sincere thanks to the heroic Rev. John Pittman Hey for sharing his PACER research on this case.) 

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