Nelson County judge compares police force used in Bardstown with - WDRB 41 Louisville News

Nelson County judge compares police force used in Bardstown with military in Iraq

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BARDSTOWN, Ky. (WDRB) – Dale O’Bryan was wanted for allegedly poaching a deer and growing marijuana when detectives with the Hardin County Narcotics Task Force showed up at his home last November with a search warrant.

What happened next has one judge comparing the actions officers took in serving the search warrant with force the military might use in Iraq.

Approaching from the front and back of the home, officers busted down O’Bryan’s rear door and threw in a flash-bang grenade to disorient anyone inside.

Nelson Circuit Court Judge Charles Simms recently called the tactics “excessive” and pointed out that police had no evidence to believe O’Bryan was a threat of any kind.

“Flash grenades might be appropriate to enter a residence containing a murderer, a rapist, or terrorist, but it is over the top in this marijuana investigation,” Simms wrote in an order on Sept. 28. “Law enforcement must remember that this search was conducted in New Hope, Kentucky, and not Falluja, Iraq.”

Simms noted that while marijuana is illegal, “it is apparent from previous jury trials that many of the Nelson County jurors are of the opinion that marijuana should be legalized.”

In addition, Simms noted that he was “most concerned” with testimony from Bardstown Police Det. McKenzie Mattingly, who said flash grenades are “usually” used when serving warrants, except in cases involving children and the elderly.

The use of flash-bang grenades -- which release a disorienting burst of light and noise -- has been debated for years in the courts as some argue the use of the devices violates their constitutional rights. Some law enforcement agencies across the country have said the grenades are used only in high-risk situations.

Simms eventually overruled a motion by O’Bryan’s attorney to suppress the evidence -- which included marijuana and guns -- saying it wasn’t the proper remedy under the law; but he pointed out that O’Bryan could file a lawsuit if he wanted.

Simms also expressed concern for both the safety of law enforcement and homeowners in the use of flash-bang grenades.

“Law enforcement should be cognizant that this type of entry may provoke violence by a surprised homeowner who may think he or she is rightfully acting in self-defense,” Simms said in his ruling.

The ruling has been seen as an unusual critique by a sitting judge of the tactics of police, especially in a small town. Mattingly initially lashed out at the judge in a social media posting, writing that several police have recently been murdered, but no judges, according to the local newspaper, The Kentucky Standard.

The post has since been removed.

Hardin County Narcotics Task Force Director Ron Eckhart was out of town Wednesday and could not be reached for comment.

The Kentucky Standard reported it was the Bardstown police Flex Team working under the auspices of the Greater Hardin County Narcotics Taskforce that day.

Bardstown Police Chief Rich McCubbins said in a statement to WDRB that he respects the judge's input but wouldn't second guess a commander of his flex team who felt a flash-bang was necessary.

"I'm not going to gamble with officer safety," he wrote. "I understand if members not in law enforcement might question whether a FLEX team tactics are excessive, but that is a matter of perspective. Just because it looks ugly does not mean that it is wrong."

McCubbins didn't have time for an interview with WDRB on Wednesday and his statement did not reflect how often the flex team uses flash-bang grenades.

But asked in court by O’Bryan’s attorney if the plan all along was to use a flash-bang grenade, Mattingly said it was.

“Generally we issue flash-bangs and will plan on deploying one unless something dictates that we don’t, if we have intelligence that elderly people live at home or evidence of kids,” Mattingly testified. “Outside of those factors, we generally plan for the deployment of a flash bang.”

It is unclear if Mattingly was talking about the Bardstown flex unit or the Hardin County drug task force. He is a member of both.

The judge wrote that Mattingly was talking about the "flex unit."

The incident began after investigators received calls from O’Bryan’s son about his dad having poached a deer and growing marijuana in his home.

The task force -- made up of police from across Hardin and Nelson Counties -- prepared a search warrant and showed up at O’Bryan’s home on Nov. 16.

While Mattingly and his crew went to the back, O’Bryan was answering the knocks of officers at the front door. Judge Simms said in his order that Mattingly and his team knew O’Bryan had already gone out the front door but used the flash-bang grenade anyway.

Mattingly, the team leader, said they knocked and announced the search warrant and then busted down the door and used the flash-bang, in part, because it was unknown if others were in the home. And investigators knew O'Bryan had at least one weapon, because he had killed a deer.

As a Louisville Metro Police Officer, Mattingly was charged with murder but later acquitted by a jury in the January 2004 fatal shooting of 19-year-old Michael Newby. He has been with the task force for four years.

Attorney Keith Sparks, who represents O’Bryan, told Judge Simms during a Sept. 22, hearing that the methods used by Mattingly and other detectives were “totally over the top.”

“We believe this is a very egregious violation,” Sparks said.

O’Bryan is facing charges of trafficking in marijuana and possession of a firearm while committing drug related offenses.

The case is pending.

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