Attorneys for the Habersham County Sheriff’s Office argued in newly released court documents that the parents of a toddler maimed in a botched raid were to blame are his injuries because of their “deliberate, criminal conduct.”
One year ago, 18-month-old Bou Bou Phonesavanh nearly died when a flash bang grenade landed in his playpen. His parents — Bounkham and Alecia Phonesavanh — filed a federal lawsuit against Sheriff Joey Terrell and members of the Habersham County Special Response Response Team in February, alleging violations of the family’s constitutional and civil rights. A settlement was reached in late April and the court documents were released afterward.
With a federal investigation of the incident ongoing, local law enforcement has remained mum about the raid, conducted by special response team on behalf of the Mountain Judicial Circuit Narcotics Criminal Investigation and Suppression task force. One day after an undercover officer allegedly purchased a small amount of methamphetamine from suspected drug dealer Wanis Thonetheva, the squad went to Thonetheva's mother's house, the place from which officers said he sold the drugs. They entered the residence, where the Phonesavanhs were temporarily staying, on a no-knock warrant, throwing the flash grenade as a distraction.
The documents provide a glimpse at the defense that would’ve been mounted had the suit not been settled. However,according to one legal expert, the documents should be viewed in the proper context.
“The complaint itself, and the initial answer, are starting points,” said Marietta criminal defense attorney Philip Holloway. “Often, they’ll end up somewhere in the middle, as they did in this case. A lawyer would be committing malpractice if they didn’t raise every conceivable counterclaim or defense. It doesn’t mean they’re bound by that.”
But the response by law enforcement is striking in that it shifts the responsibility for Bou Bou’s injuries on his parents. It does not go into detail about the allegations against the Phonesavanhs, who said they had planned to move out the day of the raid upon learning of Thonetheva’s problems with the law.
A Habersham grand jury convened to investigate the incident concluded the raid was "hurried and sloppy." The same grand jury declined to charge any of the officers involved.
“Much of the problem in this tragic situation involved information and intelligence,” the jurors wrote last October in their presentment.
Lawyers for the sheriff and the other officers denied that “false and misleading information was used in the search warrant application,” even though the case agent who supplied it was forced to resign last year. She told SWAT team members to expect armed guards and a cache of weapons at the home but none was found.
Neither was the suspect, Thonetheva, who was arrested the following day without incident at his own residence.
“We wouldn’t have had a settlement if they didn’t know they were in the wrong,” said civil rights activist Marcus Coleman, who has served as the family’s spokesman.
The settlement, reached in late April, included a structured payout of $964,000 taken from a $1 million insurance policy maintained by the Habersham Sheriff's Office.
Neither the plaintiffs or the defense will comment on the agreement, but Mawuli Davis, the Phonesavanhs attorney, said litigation continues “to move forward against the other defendants” from the since-disbanded task force, which also covered Rabun and Stephens counties.
Bou Bou, meanwhile, recently underwent his 12th surgery since the incident, this time to scrape gunpowder residue from under his skin. He faces two surgeries every two years until he stops developing to repair damaged nerve endings. Doctors say it’s still too early to tell whether there will be lasting damage to the his brain.
“He’s a very smart, quick little boy,” his mother, Alecia Phonesavanh, told The Atlanta Journal-Constitution. “But we won’t know until after age 5 if the brain injuries are long-term.” Bou Bou turns 3 in October.
His injuries led to renewed calls to eliminate, or at least restrict, military outlays to local law enforcement agencies,which in recent years have purchased, at reduced price, everything from grenade launchers to armored tanks. Last week, President Barack Obama announced an initiative that would prevent the Pentagon from giving away certain types of equipment while requiring agencies to justify why they need the surplus still permissible to buy.
The botched raid also led to a bi-partisan effort to restrict no-knock warrants. But law enforcement successfully defeated a bill that would've set guidelines for the process.
The Phonesavanhs said they are still hopeful criminal charges will be brought against the officers involved, but prosecutors face a high legal threshold as they must prove the officers knowingly or willfully inflicted the injuries upon Bou Bou, according to legal observers.
“If someone can look at this situation and be honest, there should definitely be charges brought,” Alecia Phonesavanh said. “I want to at least be able to tell my son that this is being made right. I don’t want to have to tell him that the people who did this to him are cops and they got away with it.”
The family will mark the one-year anniversary of the raid in the hospital, where Bou Bou’s father Bounkham Phonesavanh is scheduled to undergo surgery for a torn rotator cuff allegedly sustained when one of the officers placed him in a choke hold.