Judge: 'excessive force' a possibility

 BY JAY WEAVER

 A federal judge ruled Elián González's Miami relatives can pursue their lawsuit against the U.S. government solely on grounds that gun-wielding agents may have used "excessive force'' during the April 22, 2000, raid to seize the Cuban boy.

 U.S. District Judge Shelby Highsmith, citing a Chicago Police case, said ``the Gonzálezes have alleged sufficient facts to support such a claim'' that the government may have violated their constitutional rights.

 The government was seeking to have the relatives' suit tossed out.

 Highsmith's ruling was an important tactical victory for Elián's great-uncle Lázaro González, his wife, Angela González, and daughter Marisleysis González. It could pave the way for a trial, though no date has been set.

 Even though the government obtained a legal warrant for the raid, "that is not a license for the government to exercise excessive force in executing that warrant,'' the
 family's Miami attorney, Frank Quintero, said Thursday. "I think it's a very good ruling for us.''

 In his 29-page ruling, Highsmith also allowed Lázaro González to sue former U.S. Attorney General Janet Reno, former immigration chief Doris Meissner and former Deputy Attorney General Eric Holder.

 Among those dropped from the suit: Betty Mills, the Immigration and Naturalization Service agent who grabbed Elián and carried him to a waiting van, former Miami Police Chief William O'Brien and ex-Assistant Chief John Brooks, who rode along on the raid.

 But Highsmith, in an order filed with the court late Tuesday, found that the government's arrest and search warrants used to enter the González family's Little Havana
 home were legal.

 The reason: The INS revoked the boy's immigration parole more than a week before the raid, and the arrest warrant was for him, not his relatives. The government wanted to reunite the boy with his Cuban father.

 The judge also found that Reno, Meissner and Holder did not conspire to violate the constitutional rights of Elián's Miami relatives in ordering the raid, as alleged in the lawsuit filed on Sept. 28, 2000.

 The Gonzálezes' attorney has roughly three weeks to file a new lawsuit that incorporates the judge's decision on the government's dismissal motion. The Gonzálezes are seeking unspecified damages.

 The U.S. Department of Justice could appeal Highsmith's ruling within two months, holding up any trial. "We're reviewing the judge's decision and determining our
 options,'' department spokesman Charles Miller said.

 In his decision, Highsmith noted that he was ``liberally construing the complaint in favor of the plaintiffs'' on the government's dismissal motion. It did not require a
 full-blown hearing on the facts in dispute.

 On the question of alleged excessive force, the judge cited a Chicago appellate case that alleged a city police officer with a search warrant broke down the front door of a suspect's home without prior warning and pointed a gun at his head.

 Last year, the 7th U.S. Circuit Court of Appeals concluded the allegations "were sufficient to state a claim for excessive force under the Fourth Amendment,'' Highsmith wrote in his ruling.

 In the Gonzálezes' suit, the family claimed the following facts: ``At no time did the federal agents knock on the door, nor did they announce their presence. The federal agents merely approached the plaintiffs' residence with a battering ram and broke down the front door, thereby giving passage to the agents into the residence.

 "Once inside the residence, the federal agents sprayed more gas; pointed guns at the occupants, which included children, threatening to shoot; shouted obscenities; and broke doors, furniture and religious artifacts. . . .

 "As a federal agent held a large weapon of war pointed at one of the occupants and [6-year-old Elián], Betty A. Mills, an armed INS agent, entered the room with a blanket and seized the child. The agents backed their way out of the residence with the child to a waiting van, [with] federal agents still pointing guns at the occupants of the residence.''

 Those statements will be challenged by the government, including allegations that the Gonzálezes locked the front door and placed a sofa behind it as the INS agents
 approached the home.

 At the time, Reno, federal authorities and others described the Miami raid as a textbook police tactical operation.

 Reno said she had received information "there were guns -- perhaps in the crowd, perhaps in the house.''

                                    © 2001