The collection calls have already started.
In the nearly five months since their 19-month-old son Bounkham, or “Bou Bou,” was disfigured by a stun grenade deployed during a botched drug raid in Habersham County, Bounkham and Alecia Phonesavanh have racked up roughly $1 million in surgical costs, with more to come.
“We have no idea how we’ll be able to come up with the money,” said Alecia Phonesavanh, who has returned from Cornelia, along with her husband and four young children, to Janesville, Wisc., where she works as a home health care provider for the developmentally disabled.
Despite bearing responsibility for the boy’s injuries, Habersham officials have refused to pay even a portion of his medical bills. The county’s attorney, Donald Hunt, said that would constitute “a gratuity,” which is prohibited by the state Constitution unless a court determines civil liability.
For the Phonesavanhs, the decision was just one in a series of recent disappointments. In March, a fire gutted their Wisconsin apartment, prompting their move to Georgia.
Last week, they learned a grand jury would not be charging any of the officers involved in the planning and execution of the raid despite labeling the investigation as "hurried and sloppy."
A civil suit may be the family’s only recourse, but winning a judgment won’t be easy, say legal observers.
“You can’t sue the king,” said Atlanta personal injury lawyer David Hughes, explaining how “sovereign immunity” often protects government bodies in negligence cases.
There are exceptions that supersede sovereign immunity, such as when police use excessive force or violate of a citizen’s 4th Amendment right against unreasonable searches and seizures, Hughes said.
Such a claim figures to be a component of the Phonesavanh’s lawsuit, as Bounkham Phonesavanh alleges he sustained a torn rotator cuff after he was placed in a chokehold by one of the SWAT officers.
But the larger case isn’t as clear-cut, at least from a legal standpoint.
For one, the Habersham SWAT team had secured a no-knock warrant, although the information provided to the judge who granted it has come under question. The case agent from the Habersham sheriff’s office narcotics squad, who has since resigned, warned of armed guards and a cache of weapons inside the home, though none were ever found.
“You’d have to prove there was an unofficial custom or practice that led them to commit an unconstitutional act,” Hughes said.
If a civil suit is brought, the county's lawyers are likely to counter that the Phonesavanhs bear some responsibility because, as the grand jury wrote, they "had some degree of knowledge concerning family members involved in criminal activity that came in and out of the residence."
Bounkham Phonesavanh said he first suspected his nephew, Wanis Thonetheva, might be dealing drugs the day before the raid. Thonetheva, arrested without incident and charged with dealing methamphetamine, was no longer living at his mother’s house but made the alleged drug deal in her driveway.
“We were moving out the next day,” Bounkham Phonesavanh said. Mawuli Davis, the family’s attorney, produced a receipt showing the Phonesavanhs had reserved a moving van.
“I don’t know why they keep trying to place blame on this family,” Davis said.
Regardless, Decatur lawyer Craig Jones, who has argued police misconduct cases before the U.S. Supreme Court, said the Phonesavanhs would have to prove the police acted with willful intent.
It's a similar threshold faced by federal prosecutors, who continue to investigate.
“It’s got to be intentional,” Jones said. “If we’re just talking purely negligence, that’s not a Constitutional violation.”
“It has a lot of jury appeal but it’s fraught with peril,” he said.
In the meantime, the Phonesavanhs say they are focused on day-to-day needs. They’ve raised about $8,000 through their website, justiceandprayersforboubou.org, but “it’s not even close to begin to help with the mounting medical bills,” Alecia Phonesavanh said. “They just keep piling up.”
“We haven’t hurt anybody. We’re working class people,” she said. “We do what we have to to make ends meet.”
Bou Bou “has come a long way,” according to his mother, but he still faces surgeries every two years until his body stops developing to repair damaged nerve endings. Doctors say it’s still too early to tell whether there will be lasting damage to his brain.
“We gave birth to a healthy, happy little boy,” she said. “Now we’re uncertain what we’re going to end up with. But we’re still going to make the best life possible for him and the rest of our children.”
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