Almost two years after being injured in a botched drug raid in Habersham County, Georgia, baby “Bou Bou” Bounkham Phonesavanh’s case against the officers involved has been settled for a total sum of $3.614 million. The case has been pending in the United States District Court for the Northern District of Georgia, Gainesville Division. According to attorney Richard Hendrix, who was co-counsel for the Phonesavanh family, the settlement is a good one.
“Anytime a civil rights claim is asserted against a law enforcement officer, there are a number of issues affecting any possible settlement. Foremost among the issues are the defenses of qualified immunity and limited available insurance coverage for police officers in general. The settlements received in this case, we believe, will protect the long-term interests of this child particularly because we have structured a significant portion of the monies to provide for his future needs.”
19-month old Bounkham Phonesavanh was with his parents on May 28, 2014 when a joint Special Response Team (comprised of deputies from the Habersham County Sheriff’s Office and police officers from the City of Cornelia Police Department) raided a residence in Cornelia, Georgia where the child and his family were temporarily residing. The family’s home in Wisconsin had burned down by accident some two months prior and the family was staying with relatives in Cornelia. Unbeknownst to the Phonesavanh family, a search warrant was obtained by Agent Nikki Autry of the Mountain Judicial Circuit NCIS Team which authorized the joint SRT SWAT Team of Habersham County and City of Cornelia to search the premises on May 28, 2014. Agent Autry allegedly falsified the Search Warrant Affidavit which permitted the search to occur. Autry was indicted by a federal grand jury for civil rights violations in connection with the Search Warrant application but was acquitted after a criminal trial in late 2015 by a jury in Gainesville. The Phonesavanh’s Complaint alleged that Nikki Autry and her supervisor Task Force Commander Murray Kogod, had jointly participated in providing false information to a Magistrate that resulted in the issuance of the search warrant. The Phonesavanhs alleged that the suspect of the drug raid, Wanis Thonetheva, did not even live at the residence that was searched. At the time the flashbang device was used to obtain entry into the home, it was undisputed that the suspect was not there. He was later apprehended at his girlfriend’s apartment without incident.
When the flashbang device was used to gain entry into the home it was thrown into baby Bou Bou’s crib which was located several feet from the doorway. The Phonesvanh’s Complaint alleged that the use of the device without verifying whether its use was safe was also a Fourth Amendment violation. The grenade exploded inside the crib next to the baby’s face. The child suffered severe burns and injuries to his mouth, nose and chest, which injuries included a fractured jaw, numerous first and second degree burns and a significant injury to his mouth, nose and rib cage. The child has since undergone numerous surgeries to correct the facial burns and scaring and awaits further surgeries in order to release scar tissue as he ages over the next several years.
The Phonesavanh family was represented jointly by Richard W. Hendrix and Steven R. Wisebram of Finch McCranie, LLP in Atlanta and Mawuli Davis of the Davis Bozeman Law Firm in Decatur. Prior to the settlement on February 12, 2016 with all remaining defendants, the family had previously settled with the insurance carrier for Habersham County for $964,000.00 ($36,000.00 of the one million dollars in limits was paid to the owner of the residence) and with the City of Cornelia for $1 million. On Friday, the family received an additional $1.65 million from the insurance carriers for Rabun and Stephens Counties, the other two members of the Mountain Judicial Circuit NCIS Task Force.
The total settlement of $3.614 million will result in the dismissal of the federal civil rights lawsuit pending in Gainesville, Georgia and will also result in the dismissal of a companion Declaratory Judgment action involving contested insurance coverage. Ironically, according to attorney Hendrix, one of the reasons that the case was able to be settled is because of an earlier favorable result in the case of Ayers v. ACCG-IRMA, __ Ga. App. ___ (A14A1520, March 20, 2015). In the Ayers case, in which officers from the same Task Force allegedly killed an innocent 28-year old preacher, Jonathan Ayers, the Georgia Court of Appeals held that the insurance coverage for each constituent member of a task force could be stacked. The stacking of the coverage for the four members of the NCIS Task Force, according to Hendrix, is what helped to get the case settled. “With serious injuries like those sustained by this child and his other family members, it would be nice if there were unlimited insurance coverage available to address past, present and future needs. Under the circumstances, we were extremely pleased to obtain these settlements, particularly given questions concerning available insurance coverage, qualified immunity and the vicarious responsibility of the Task Force members.” U.S. District Court Judge Richard Story will have to approve the settlement’s terms (as pertains to the minor’s claims) prior to final dismissal of the action.