A Quick Reaction to Radley Balko's Comment:
My co-blogger Jonathan posts an interesting comment from Radley Balko about liability for search warrants, with the addition that Radley's comment is "worth repeating." I have a different take: Radley's comment strikes me as problematic on a number of levels. First, it isn't an accurate expression of the law, either from the standpoint of self-defense law or the standpoint of civil actions against the police. Second, as best I can tell, we really don't know the facts of the Johnston case to which the post refers. A lot of bloggers just seem to know, but as far as I can tell we have a lot of speculation without a solid basis to know what happened.
[See Second Update Below] Third, Radley's "pretty simple" solution seems quite troubling to me. Under his proposed solution — "stop invading people's homes for nonviolent offenses" — a person could commit any white collar fraud, embezzle money from the elderly, bribe Congressmen, or engage in a global child pornography trading ring knowng that the police won't invade their home to collect evidence against them. I assume these crimes are all nonviolent offenses, and if I understand Radley's idea, homes wouldn't be searched for evidence of such crimes being committed. That doesn't seem like a very good solution to me.
UDPATE: A few commenters, including my co-blogger Ilya Somin, think that Radley is implicitly limiting his proposal to no-knock searches, maybe at night, and maybe "SWAT style raids" that use a "high degree of force" and "paramilitary tactics" instead of the usual "searches" that use a "normal" degree of force. I'm not sure I see this in Radley's post, but I thought I should at least flag the uncertainty.
ANOTHER UPDATE: Radley's latest post makes clear that my earlier post badly misunderstood his position. My apologies. In its Fourth Amendment cases, the Supreme Court routinely refers to "invasion" of a home to mean any physical access, and I assumed Radley was using the word in the way the Supreme Court does, not to refer only to no-knock paramilitary raids. Radley seems to think my misunderstanding was in bad faith; it wasn't. In any event, I regret the misunderstanding.
[See Second Update Below]
ANOTHER UPDATE: Radley's latest post makes clear that my earlier post badly misunderstood his position. My apologies. In its Fourth Amendment cases, the Supreme Court routinely refers to "invasion" of a home to mean any physical access, and I assumed Radley was using the word in the way the Supreme Court does, not to refer only to no-knock paramilitary raids. Radley seems to think my misunderstanding was in bad faith; it wasn't. In any event, I regret the misunderstanding.
Related Posts (on one page):
- My Apologies:
- Radley Balko Responds to Orin Kerr:
- A Quick Reaction to Radley Balko's Comment:
- Invading Cops Can Make Mistakes, You Can't:
Not every search is an "invasion." The latter involves an unannounced break-in, often in the middle of the night, intended to take the residents of the home by surprise. Police can search the homes of white collar criminals, etc., without engaging in home invasions.
Quite simply, there is *never* a good reason for those tactics except when your goal is not to capture the people inside, so much as to make sure they don't get away: dead or alive is irrelevant.
[OK Comments: Yes, that was definitely the source of the misunderstanding. See my correction above.]
The problem is that no-knock searches create an inherent major risk of harm to innocent persons, i.e., it's an ultra-hazardous activity.
The point is not to kill the people inside, but to prevent them from killing any cops. It is better for a drug dealer to die than a cop. If they try to shoot back, then it makes sense to shoot them. If not, they won't die.
I'd like to challenge you on the civil rights issue. Although melodramtically put, Balko is basically correct about the near-impossibility of successfully suing the police for civil rights violations. The Supreme Court has utterly emasculated what is on the face of it, a reasonably clear statute (Section 1983). The layers of additional pre-trial specificity and review, together with the "dumbest cop on the force" rule (my own coinage), limiting liability to cases where no reasonable officer could possibly have considered the challenged action (and this is NOT a reasonable person standard), all make for effective immunity.
Moreover, the observation in one of the news stories that police officers are scared to death of lawsuits is laughable. As of the early 1990s, there was no record of a police office actually paying from his own pocket damages in a Section 1983 suit. Many cities have ordinances or union rules requiring indemnification of police officers, except in extraordinary circumstances that in practice cannot be reliably and credibly invoked. I have no doubt that there are police officers who believe their assets are at risk (though these SWAT techniques suggest otherwise), but this is about as enlightening as physicians complaining about malpractice LIABILITY - which they avoid in 70% of trials.
While what you said about white collar crimes seems to ignore the distinction between searches and no-knock SWAT raids as I said in the other discussion I still think it is a worry. We don't want the police to be unable to search the armed anti-government militia headquarters for white collar crimes because they know that a normal knock and announce search/arrest would be too dangerous.
Hence the solution I proposed of requiring a special type of warrant for SWAT style raids that requires individualized reason to believe that the residents will offer violent resistance to the police, e.g., something more than that they own a gun and have an assault conviction. Furthermore I think these warrants should require either a significant amount of paper work or a two day waiting period for non-violent offensenses making sure the police have an incentive to do a normal knock and announce warrant unless they really believe they will be in danger.
The problem with your comments is that they effectively assume guilt. People should be assumed innocent until proven guilty. The problem with the attitude 'better a drug dealer die than a police officer' is that it encourages the police to treat suspects as if they were already tried and convicted. This isn't to say I don't think the police ought to be treating an officer's death as no worse than a suspects but this attitude is concerning.
Also I think you are laboring under a certain stereotype of a drug dealer as the young gang thug. For instance most weed dealers are not likely to be violent at all. Similarly most heroin dealers aren't violent either. They are people will cell phones who drive around and deliver some drugs. I've known a fair number of these people and most of them are just addicts who sell some to support their habit, none of the ones I know even owned a gun. Even the street dealers tend to be low level gang lackies who do the work for money or drugs and are going to run not shoot at the police. I suspect wife beaters are more likely to violently attack the police than your average heroin dealer.
Now meth dealers probably are significantly more dangerous to the police. They tend to get paranoid and often seem to own weapons. Also drug kinpins and high level gang members who control the trade probably are quite likely to be violent.
Ultimately I agree there are circumstances which the police need to do a SWAT style raid. However surely you will agree that executing a search using tactics more likely to result in an accidental shooting should require greater care and certainty than a normal search. If you are going to do a SWAT style raid you should double check the address, look over the reasons you think it is going to be very dangerous etc.. etc.. So why not formalize this procedure and require them to get a special okay for this tactic?
Why does this remind me of the argument that Iraq would be peaceful today if Saddam had had nukes and the UN Security Council had voted to authorise the US invastion?
[OK Comments: The Fifth Amendment effectively bars this as an option, to the extent it is actually a workable option.]
The purpose of a dynamic entry is to overwhelm any resistance and gain rapid control of a location, preferably before the subject even knows what hit them. So we come in the dark of the night... so what? There's a reason for that. We hit locations at night, usually between the hours of 4AM and 6AM, because even if the subjects are awake, that's when human alertness is at its lowest ebb. We do that so we can take them into custody... we want to overwhelm them and take them alive, not provoke a shootout. If we wanted them dead, we'd just put our snipers out and have them shoot on sight.
We're not executioners. Shame on those who would portray us in such a pejurious fashion.
You're missing the point. What if the victim is a 90-year old woman who thinks her home is being invaded by criminals? The police have then *created* the dangerous situation by their actions. Maybe it is better for a drug dealer to die than a cop, but is it better for grandma to die than a cop?
It seems that drug dealers are often quite likely to be violent - while drug dealing may not be violent in itself, it often results in violence. Which means that it makes sense for police to conduct drug raids in such a fashion.
No, it doesn't. It makes sense to arrest them away from their homes where the likelihood of anyone getting hurt, cop or suspect, is much lower. Drug dealers are no more violent than anyone else
Keep in mind, this lady was not innocent - they found drugs in the house. Moreoever, police had already been to the house to purchase drugs - this was not a random invasion, but an assault on a known center for drug distribution.
Yes, those 95-year old violent drug dealers are a menace to society who should be killed at every opportunity. Do you listen to yourself at all? I'll reiterate: these tactics *create* dangerous situations for suspects and cops that otherwise would not exist.
Such a calculation might be justifiable if national security was at stake, but using the war on drugs as an excuse is deplorable.
Good posts. Too bad you're just a dumbass cop and don't possess the inerrancy of the other posters who think you no better than a drug dealer. Unfortunately, you committed a cardinal sin on the interweb: knowing what you're talking about.
Kudos to Orrin for not jumping to conclusions before all the facts are in. That's what I always liked about the VC: facts, law, and results-not emotion.
I've done a lot of no-knock warrants for the cops. I've also refused to do a fair amount. All I know is if I refused to ask a judge for a no-knock, and a cop was killed as a result, I'd have a lot to answer for. In real life, it cuts both ways. Ideally, I prefer the cops are as minimally intrusive as possible, while still allowing for the preservation of the evidence and the safety of all parties involved. As in this case, It doesn't always work out as planned. But its easy to judge in hindsight.
I truly enjoy David Simon's work.
1. There are way to many times that SWATing the people houses at night causes innocent death: Both of the police officers and suspects. They are still suspects... Remember? SUSPECTS.
2. Another point: let us assume you live in bad neighborhood. you have a weapon. In next room sleeping your daughter. You don't have former convictions. And suddenly somebody breaks your door and running inside.. Will you shoot? I will...
3. In too many cases when people shot cops by mistake they were sentenced for a long conviction. It is not fair.
Orin:
It is your worst article I read here... It seems you even did not tried to understand Radley's point. It is so clear that Ridley did not wrote about regular searches....
But we do have similar facts to those alleged in all sorts of other cases (for starters). Exactly what facts do you need, Orin, to help you decide if it's a good idea to deploy SWAT teams for small-time offenses?
Terrorism investigations, hostage takings... these are legitimate reasons to use dynamic entry with weapons free. Even if you do burst into the wrong house, we can all accept that some lives must be placed at risk to save others.
If you have a drug case, stake the house, follow the people, slip into the house when no one's there and grab the suspects off the street, when they're in a washroom, sometime when they're distracted and can be easily bundled into a car. It's not nearly as hard to do this, but it does require more resources. Perhaps we shouldn't be trying to mess with markets like this, no? We learned something deep and true during prohibition: it doesn't work and it only creates violence and profits for criminals. Keep SWAT focused on violent crimes, the police focused on violent crime, terrorism, and property crime, and get the government out of trying to prevent markets between consenting adults.
That said, I'm no fan of these sorts of raids, and generally agree with the Reynolds-Balko-Somin Axis of Legal.
One undercover drug purchase, of which we know no details, does not a "distribution center" make. To synopsize facts asserted by the WAPO and Atlanta Journal Constitution that Balko linked from his posts on the subject:
The AJC reported that police say they found "suspected drugs" at the house, but they do not say what quantity, what drugs, or where at the location they were found. They also say they won't know what the drugs were until a lab test is complete.
So police may have found a bottle of pills in her medicine cabinet, or a ton of crack in her living room. But they aren't saying.
The AJC also reported thatThe WAPO reportedTherefore whatever precautions or double-checking they made to avoid errors must have been done within a few hours.
The AJC and WAPO both report that she rarely even came out of doors and had guests only rarely. Some neighborhood residents also denied ever seeing anybody matching the police description of the drug selling man in the neighborhood.
I think this post was beneath you. In the context of his overall work, I think it fairly obvious that Balko was not saying that police should not be allowed to obtain search warrants when investigating non-violent crimes. The bulk of Balko's recent work has involved criticism of "dynamic entry" raids to target non-violent suspects (or more precisely, suspects for whom there is little reason to suspect at the time of the raid that they are violent). The post from "TheNewGuy" above accurately captures my understanding of the police rationale for most nighttime raids. Merely to describe the process, however, is to identify the problem - The targets of such raids are put into an impossible situation where they have to make a life or death decision in a manner of seconds, often while disoriented from having been startled awake. Is it the cops, or is it violent criminals? Guess wrong either way, and you just might die. This is a terribly unfair situation to put any citizen in, and thus should be avoided unless there is a similar countervailing risk to life or limb by not acting - e.g., if you are going after a violent criminal, a kidnapper, or a suspected terrorist.
Note also that in the context of the war on drugs, the Hobson's choice created by dynamic entry raids is not mitigated by the fact that the target of the warrant might possess, or even sell, illegal narcotics. You are still putting that target in a situation where they have to make a split-second life or death decision, and they may also be concerned about protecting innocent family members who are present. Last time I checked, drug possession (or even distribution) was not a capital offense.
Bottom line, in the case of most non-violent crimes (your child porn example, BTW, does not qualify, any more than rape), I don't see why we can't have a default rule that searches should be conducted in the daylight hours, when people are less likely to panic, and less likely to be genuinely confused about whether they are being invaded by actual cops or instead potential criminals.
To the extent we just disagree on what Radley was saying, I'm not sure why you think my failure to agree with your reading of the passage is "beneath me."
The point is that there is a growing perception that "plan A", the first resort, is for a team of big, loud, masked men to smash the door off its hinges and burst into the home screaming curses, slamming homeowners up against the wall, flipping a flash bang grenade into the baby's crib, pointing submachine guns in everyone's face, and generally doing things that shouldn't be permitted in a free society.
One (of many, many) things wrong with this is that it gives the homeowner no opportunity to verify or even understand that the invaders are really officers of the government. This creates the compulsion, even the duty, to stand between his family and the threat.
Another is that it breeds fear, contempt and loathing for law enforcement officers. The relationship between the public and public servants should be one of cooperation and partnership, as it has been for most of our country's history. I've always believed and been taught that cops are on my side, I wave to them on the highway and would pull over to offer help to one if the situation presented itself. This is what I teach my children. I fear that most kids growing up in these times are internalizing a very different kind of relationship with law enforcement.
Just meant that it was not up to your usual standards, because Balko's stuff has been discussed on this site before, and it seemed fairly clear that even if his wording was less than precise, he was not taking the radical step of suggesting that police should be completely barred from obtaining search warrants in cases involving drugs, securities fraud, child porn, etc. In any event, 'beneath you' was also a poor choice of words - No offense intended.
You have no recourse when there's no victim. Judges need to stop issuing warrants in victimless cases.
Seeing as how Balko refers specifically to SWAT teams and "invasions" as opposed to searches, I don't see any uncertainty. Just reading the front page of his website today would dispel any you might have. Don't go all Kerry on us; just admit you jumped the gun.
[OK Comments: see my second update, John]
If "human alertness is at its lowest ebb" in those hours for all people even if they are awake, then why would awake police at those hours be any more alert than awake "subjects"?
The point is not to kill the people inside, but to prevent them from killing any cops.
Wrong. The no-knock warrant and the associated element of surprise is to prevent dope dealers from flushing evidence. Now, consider the physics of this; it only works with small amounts. No one is flushing a kilo of anything, least of all with the new low-flow toilets. And for that, we put the police, the criminal, and who knows what innocent third parties at grave risk?
As to your conclusions about Ms. Johnston (and her residence), none of the "facts" you assert have been established.
So we come in the dark of the night... so what? There's a reason for that. We hit locations at night, usually between the hours of 4AM and 6AM, because even if the subjects are awake, that's when human alertness is at its lowest ebb.
There is something I don't understand in this reasoning. "
___
Me too.
Newguy presents himself as a SWAT guy, and we have no reason to think otherwise.
As I understand it, he's implying that if he hears his own front door smashed and footsteps running down his hallway at 4AM he will not pick up a weapon. Or that if he does, he deserves to die, his wife to be widowed and his children orphaned.
Why do I doubt this? Maybe he could explain?
So we come in the dark of the night... so what?
As I recall, part of the reason the 4th Amdt arose was from such midnight visits from Crown agents. Likewise the demand for specificity in the warrant and issuance by a neutral authority. In the Johnston case, apparently the police did not know the name of the man who had sold them [some unspecified] drugs, nor if he lived in that house, or who else lived in that house. So on what basis did they conclude it necessary to make a "dynamic entry" as opposed to a normal service? Or did they just do it because it had become the 'routine' way to handle drug cases?
To quote Radley's response to you,
I've often thought you might be misreading things, particularly in response to the NSA wiretapping scandal - but I'm not a lawyer, and we didn't know the facts, so I gave you the benefit of the doubt. But on this? Wow.
Sir, I don't know if you just gloss over things you don't agree with, or if you fail to read things the way most reasonable people, including your fellow bloggers/lawyers, do. However, it's evident to me that you're not really willing to rethink your conclusions in the face of evidence that you're wrong - and that's a poor trait for a lawyer, or a teacher. I think you owe your readers an apology for this hasty and ill-conceived post.
[OK Comments: Riptide, see my apology above, also written as a separate post for added visibillity]
And because the civilians are held to a higher standard if they screw up.
This is a simple cost balancing problem. The police are imposing heavy costs upon non-violent criminals and upon ordinary civilians and except in the most egregious cases, avoiding all costs themselves. The police are the best cost-bearers in this scenario (in terms of care taken and costs of screwing up) so we need to fiddle with the legal system until reality matches this more ideal scenario.
Right you are. And it's important to take the ecstasy off the street and arrest the dealer in order to protect the law-abiding citizens of the community. Absolutely.
So how many lives, of how many law abiding, innocent, taxpaying, child-rearing, voting members of the community is it worth to grab these 5000 pills?
We could be very "effective" by ignoring all aspects of due process, by shooting dealers on the street, by allowing wiretaps without warrants, by using rubber hoses in back rooms to obtain evidence. Is effectiveness the primary criterion or is your comment irrelevant?
You are correct. I am a tac-team guy but have been out of it for a couple of years. I was a fully-trained operator, but my role was primarily as a tactical medic.
As such, I was included in raid pre-planning; medical threat assessment is something progressive teams take seriously. We would go over potential hazards of the warrant (clan-lab, children at the residence, any explosives, etc), and it was my job to plan for disaster. I'd make sure I had an IO line and peds airway gear in my bag if there were kids at the location, I'd arrange to have a helo on-call in case we needed it, stage an LZ, put our local Level-1 trauma center on standby, etc. If that level of planning surprises some of you, then perhaps you should research how professional teams actually perform their warrants. We were often after serious folks, so we made serious preparations.
As for myself, I'm known to my local LEOs. I'd hope they'd have the courtesy to approach me if an allegation were raised, if only for their (and my) safety. I'm a veteran, and my training and gun ownership might qualify me for a no-knock, but I'm also a pillar of my community, a reasonable man, and I have no history of violence.
But to answer your question: if it came to a raid, I'd never attempt to resist a tac-team swarming into my home with MP5's. If they're halfway competent, I'd be committing suicide by going for a weapon. I'd save my ire for later, and get my pound of flesh in court.
Picking your battles is what separates the living from the dead.
The short answer is, some. Well, let me backtrak. I personally don't think that e dealers should be in prison, and I certainly don't think we should be killing or wounding anyone to get them there.
However, assuming that you subscribe to the rationales underlying the war on drugs, you recognize that policing of any kind creates the risk of violence separate from the risks that are out there (and the risks policing mitigates). When you send two uniformed cops out to make a search, there is always a chance that they'll knock on the wrong door, and tragically shoot an innocent person. This is obviously a much smaller risk than when you employ no-knock SWAT raids.
I guess the point is that, constitutional issues aside, the question of how many innocent lives are we okay with putting into peril is best answered with a question - well, how many are you okay with? How strongly do you feel about the war on drugs? Do you value the lives of police more than lives of civilians? (Personally, I answer these questions with "not very," and "no," respectively). But there is a range of possible solutions depending on your answers.
[OK comments: Done. See above.]
How do we distinguish between a poorly organized SWAT raid with the wrong address and a well organized home invasion?
[OK Comments: I agree I misread Radley's post. Perhaps you should put away your rhetorical SWAT team for now.]
Yikes. You have grossly mischaracterized what he said.
One of the problems inherent in this sort of raid is that certain criminals also use this sort of home invasion method, often coupled with shouting "Police!" or wearing articles of clothing with "Police" printed on them. If someone with a police jacket shouting "Police!" bursts into your room with a gun drawn, you shouldn't shoot at him if he's actually a police officer... but if he's not, he'll likely kill you. So even if your brain is working at 100% at the wee hours of the morning, you don't have any way to verify that the gunman in front of you is actually a police officer.
(In a more relaxed entry... you know, the polite knock style, not the no-knock style... you can at least ask the officer to produce a badge, and if you like, a warrant, before granting them entry. And if you don't want to let them in, well, it's easier to keep someone from nipping out the back way than it is to go in with guns drawn, no?)
Naturally, this makes it difficult to arrest someone for having a small quantity of an illegal substance, because they can just dump it and let you in with a smile on their face. The wisdom of making possession of a small quantity of such a substance is left to the reader.
It doesn't really follow that you can dump large quantities of a substance the same way, or torch documents, et cetera, because the police are coming in; if they come in and a box of documents is on fire, or they go to the bathroom and the toilet's full of powder, then that can be entered into evidence at trial. Not too many papers are incriminating enough that they will look worse than getting caught in the act of destroying them, no?
(On the other hand, the truly paranoid among us can rig electronics in such a way that police seizure is likely to destroy the entirety of the data on those devices, so in that case, you can't be sure of seizing the files even if you catch the guy away from home!)
All that aside, in most of the cases where no-knock warrants are executed, there are other methods that take more time and resources, but have a lower chance of causing property damage and taking innocent lives. It's -worth- the money!
for those of us without the good fortune of living in a big city where they can afford multimillion dollar police departments
Regionalize... pool assets and manpower. Multi-jurisdictional teams are springing up all over the country (and I'm sure Mr. Balko is physically sick at the thought of it). These provide a viable alternative for communities that can't handle shouldering the entire financial burden alone. SWAT, done right, is expensive... and takes a serious committment on the part of the police leadership, and the local community. Spreading out the burden makes it doable.
For my own part, I've worked for both types of teams. I went from working for one of the largest Sheriff's depts. in the United States (with hundreds of SWAT operations per year) to a 50-man department that participated in a regionalized team arrangement. Each dept. provided gear and training to a handful of officers, who then trained and responded on a regionalized basis (with multiple MOUs in place) with officers from the other departments. It was a good arrangement, and while there are more administrative hassles involved, it can allow a smaller community to have the benefit of a resource that previously only big-city departments could afford.
As for Mr. Balko, he is well-known in the SWAT community. He picks out some pretty horrendous incidents (that I won't even attempt to defend), and uses them to impugn the entire process. What he ignores are the thousands of warrants that are served each year without incident... but that's fine. His opposition to the war on drugs is what generally animates his rhetoric on the subject.
As to the "flushing 5000 ecstasy pills" bit...if you know the guy's a dealer, knock on his door at 4 AM a few times. Either you catch him with drugs, or he flushes away $100,000 in goods every couple weeks and goes out of business. I find the arguments in favor of these kind of invasions with this kind of proof absolutely unconvincing.
Multi-jurisdictional teams are springing up all over the country
Ah yes, like the incident near Santa Barbara, CA that Balko cites in his catalog of horrors? The ones who couldn't wait to divvy up the seizure spoils.
Dude, does it just not occur to you that there is another way to do business? One that worked quite well for many years? SWAT was originally conceived of to deal with extreme situations, however, bureaucratic butt-covering looks to justify the extensive use, not the extreme case.
How often will this scenario arise? How many anti-government militias are out there? When was the last time the government had to search a militia HQ - 1993? Is this even something an "ordinary" SWAT team should be doing, rather than the Feds?
if it came to a raid, I'd never attempt to resist a tac-team swarming into my home with MP5's. If they're halfway competent, I'd be committing suicide by going for a weapon. I'd save my ire for later, and get my pound of flesh in court.
What I am learning from these threads is that you don't KNOW that it's a tac team bursting into your home, so you'll be making that decision on whether or not to commit suicide in a fraction of a second when you're not fully awake, and furthermore you have little or no chance to get your pound of flesh in court later.
Recently, in northern Virginia the police shot an optometrist - and we all know what violent, heavily armed scum they are - because they suspected him of illegal gambling - and what a heinous threat to society that is. The guy had no history of violence, and there was no reason to have a weapon drawn, yet they unintentionally shot the guy dead. As I recall, there were absolutely no consequences for the officer, either. None of this gives me great confidence that police will somehow be punished in court if they make a mistake.
Not really. What animates him and many other private citizens are that thuggish police state tactics are being used against private homes to conduct arrests for what are really minor crimes in the scheme of things.
And moreover: WHAT ARE WE SUPPOSED TO DO WHEN WE ARE AWOKEN AT 4 AM, WHEN OUR ALERTNESS IS AT ITS LOWEST EBB, AND WE HEAR THE FRONT DOOR BEING BROKEN INTO? Try to defend our family against home invaders? Or crouched, terrified, do nothing, and hope that this is not a criminal who will steal, rape and kill?
Thanks to Mr. Balko's fine work, there are large numbers of gun owning citizens who are asking themselves these questions, and don't get any satisfactory answer.
Many innocent citizens have DIED due to this police state behavior and it has to stop. Even not-so-law abiding citizens have DIED for the crime of possessing a small amount of drugs, when a prosecution would have likely resulted in a fine or a small jail sentence. And finally, police officers have DIED for no good reason. What part of DEAD do you not understand?
For myself: I am opposed to the use of illegal drugs, but I have made the private decision that I will never inform the police about any person's drug use. It could cost them their life.
But of course, if many of these proscribed drugs were legally available, then how could we justify the expense of all these expensive SWAT units?
Your argument seems to be: It is done right most of the time, therefore the fact that it's done wrong does not speak to whether it should be done at all.
That's a bogus argument unless you're arguing that a certain level of innocent deaths are acceptable and necessary consequence of serving warrants by SWAT team, in which case I disagree with your premise.
Now, if you want to introduce civil liability and abolish qualified immunity (and sovereign immunity while we're at it), then okay. At that point the tort system will work as a sufficient check on inadequate or plainly derelict investigative work. We could even abolish the exclusionary rule with a sufficient liability deterrent.
The fact that such warrants are served without incident also negates (or at least severely curtails) the credibility of the argument that dynamic entry is necessary or desirable in all of the cases where it is used.
In these situations, the police are creating danger where there need be none, at worst, and at best are increasing the already present danger. There may be times when that increase is justified, but they would seem to be few and far between. Given the downside available, it would seem ill-advised to use military tactics to serve warrants except in the most dire circumstances, and certainly not as a matter of course as it becomes common.
Already, smart criminals are duplicating police tactics in the hope that the occupants of dwellings will be as docile as TheNewGuy lies that he would be. This puts innocents in a terrible situation of defending themselves and risking death or prosecution, or not defending themselves and risking death (but probably not prosecution). I'd ask TheNewGuy whether he finds that to be tenable.
The entire upper command of the Sheriff's department in county where my home town sits was recently indicted on federal charges, so I certainly see no reason to trust the police any more than anyone else.
You have done a reasonable job at defending against charges of irresponsibility on the 1st type of error. Would you care to defend your profession on the second type? Or do you believe that those deadly imitators are simply not your moral, ethical, or legal responsibility?
Qualified immunity for police officers flies in the face of every other area of tort law. The law already has the ability to balance public usefulness against the burden of preventing harm- as seen in public nuisance lawsuits for decades. There is no reason the law should provide police officers with a get out of jail free card just because they work for the government.
And I havent even gone into the motives behind these raids, which is often confiscation of property rather than actual apprehension of criminals or gathering of evidence. This sort of behavior started in CA (remember that bogus raid on that mansion in the 80s?) and has followed the spread of SWAT tactics around the country.
And newguy, "ability to pay" (what multijurisdictional teams accomplishes) does not necessarily mean "incentive to pay"- what is needed is removal of qualified immunity. I want police departments to be so afraid of screwing up that they only use SWAT as a last resort and then only after doing extensive preparation and research- kind of the whole purpose of SWAT back when it was created, no? The 4th amendment and the right to be left alone in your home are too sacred to throw away in the name of expediency.
However, the need for SWAT tactics in cases involving suspected murderers and kidnappers in no way suggests that those tactics are equally appropriate in the context of suspected non-violent offenders. If you limit the universe to SWAT raids in connection with suspected non-violent offenders, I suspect the ratio of "smooth" raids to "disastrous" raids changes significantly. Balko's work in his recent CATO paper is broad enough in scope to count as legitimate social science, rather than mere anecdotes, and I think that it supports my conclusion.
Also, please note - If you try to rebut this by suggesting that even in the context of non-violent offenses, the ratio of "good" SWAT raids to "bad" SWAT raids is still along the lines of 1000 to 1, what that would tell me is that the reliance on these tactics has indeed become routine, even in cases involving non-violent suspects - This, in and of itself, would also be problematic.
As we learned from Paxti ("All I know is if I refused to ask a judge for a no-knock, and a cop was killed as a result, I'd have a lot to answer for"), those who are meant to provide checks on the overuse of aggressive entry/takedown procedures have strong incentives to authorize those procedures and few genuine incentives to minimize them.
So cops want to do those operations because they're fun (at least for those of a certain mindset -- your average tac squad volunteer, let's say); prosecutors and judges have scant motive to discourage them; and innocent victims have virtually no recourse. Problematic as it is, that calculus would be somewhat less troubling if there were at least some assurance that the anticipated benefits will likely exceed the high cost of increasingly aggressive police tactics. That's an awfully difficult argument to make for most drug crimes.
As many have pointed out, it is all about preventing them from flushing. Taken by the overall numbers, it rarely has anything to do with the threat of violence. If anything, surprised people are more likely to be violent in the face of intruders in their home.
If not, then what limitations or consequences for such misconduct would you favor to reduce the ordinary citizen's risk of injury or death from those raids you agree are indefensible?
As things stand now, police who perpetrate those indefensible raids are only rarely prosecuted for crimes, subjected to civil penalties, or even administrative punishment by loss of rank or employment. They have no reason not to continue their behavior, or even not to escalate it; and other police have no reason not to follow suit.
So what is the solution from the police perspective?
Thanks. Next time I borrow a term from a profession's own vocabulary, I'll be sure to send it to a usage panel first. :)
Oh give me a break. In what world are people not wealthy with that which they are charged with selling? (Sorry, a badly butchered translation of a Soviet saying, but you see my point).
There are legitmate reasons for qualified immunity. The problem is its abuse.
Well then, how about having the water division turn off water service to the house before executing the search warrant?
Presumably that would tip off the dealers: If the water is suddenly turned off without reason, get the hell outta there.
People seem to be assuming that the cops went in intending to find a 90 year old woman. Clearly they did not; furthermore, she had time to shoot three of them before being killed - which means they had ample time to give her notice, and for her to surrender, before returning fire. This was not a random search; the police had a warrant, and were expecting that there might be violent resistance. It may not be fair to people in poor neighborhoods, but that's unavoidable. Should we risk the lives' of cops on the off chance some dealer's grandmother is home with a shotgun? There's a very simple way to avoid being shot - don't let people sell drugs in your house.
Tell it to Sal Culosi. Or Cory Maye.
Given the number of Wrong House raids, plus the raids on relatives houses, plus the raids on the guys next door, your statement shows remarkable disregard for actual reality.
You've added nothing to this discussion, except to accuse me of being a liar, and put words in my mouth. Don't expect to be taken seriously if you can do nothing but heckle.
Now, that aside...
There's been so much malice directed against the police in these last few threads that it's hard to cut through it all.
It may surprise you that I don't entirely disagree with those individuals advocating consequences for departments that abuse their authority, but I'm not certain that a tort free-for-all is the answer either. I'm not an attorney, so I'll leave it to the legal professionals to determine where to draw those lines.
What I can tell you is that the idea of SWAT teams rousting harmless non-violent users is mostly mythology in my experience. I've never been involved in a dynamic entry for a minor drug misdemeanor. Honestly, the entire team would have been mighty pissed if we'd ever been sent on a rinky-dink, goat-rope, waste-of-our-time-and-training like that.
As for dynamic entries strictly to secure evidence, you gentlemen are actually a little behind on this one. There has been a groundswell against that practice from within the professional tactical community for years, going back to at least the mid-1990s. That change has been driven from within, and I predict the practice will eventually go away; no officer's life is worth a bag of dope.
The professional tactical community is not unaware of the issues being raised here. The last ten to fifteen years have seen much more of a professionalization of SWAT, including the growth of national organizations to help standardize training, and share lessons-learned.
Law enforcement has come a long way from the bad old days of a few decades ago, and SWAT will likely continue to evolve in the same fashion.
Not so the community can tell.
I watched the [my suburb] "SWAT" team practice at the house next to me before it was torn down. Larry, Moe, and Curley couldn't have done worse. Six guys start shouting [POLICE maybe?. At 15 feet to the side of them I couldn't tell], each voice out of sync with the others, so all you get is a loud, confusing noise. Then they kick in the door and start shouting six muddled, INCONSISTENT sets of commands, which also turns into "just noise." [Anyone remember the totally innocent guy the FBI shot in Baltimore as he obeyed one officer's commands but not another's?]
When they film COPS, they use an individual mike on 1 or 2 officers so they can get an intelligible soundtrack. The victim of the raid doesn't get that. First you stun 'em (so they can't think or react properly), then you terrify them with light, noise, and giant figures in black (chosen for its horror potential), then you (aided by the stupid courts) expect the victim to react rationally.
The basic premises of the tactics are wrong (police lives more valuable than civilian lives), so the conclusion is too. SWAT tactics are simple too dangerous to THE INNOCENT PUBLIC to be rourinely used (but after spending allllllll that money, you gotta find a need). These police create more danger than they prevent. All the while denying any liability for they injuries their terrorization creates. Americans need a homegrown "war on terror."
Spare me. I think you lied. I don't think you'd be docile if someone invaded your home and you didn't know who it was. I don't think I'm alone in that.
I didn't put any words into your mouth. I told you what I thought your position amounted to. Feel free to tell me why I'm wrong. You know, add something to the discussion.
There's been so much malice directed against the police in these last few threads that it's hard to cut through it all.
It may surprise you that I don't entirely disagree with those individuals advocating consequences for departments that abuse their authority, but I'm not certain that a tort free-for-all is the answer either. I'm not an attorney, so I'll leave it to the legal professionals to determine where to draw those lines.
What I can tell you is that the idea of SWAT teams rousting harmless non-violent users is mostly mythology in my experience. I've never been involved in a dynamic entry for a minor drug misdemeanor. Honestly, the entire team would have been mighty pissed if we'd ever been sent on a rinky-dink, goat-rope, waste-of-our-time-and-training like that.
Ever heard the one about anecdotes and data? Research, by Balko and others, indicates that SWAT teams are used for just these sorts of things. There's a litany of them on his website and in his book. I don't think he's lying, and I don't think you're lying about what you're saying (except for the docile part). Even if YOU personally have never been involved in such an event, that's utterly irrelevant. That's like a white guy in Mississippi in 1960 saying that since he's not a racist, it's not a problem.
As for dynamic entries strictly to secure evidence, you gentlemen are actually a little behind on this one. There has been a groundswell against that practice from within the professional tactical community for years, going back to at least the mid-1990s. That change has been driven from within, and I predict the practice will eventually go away; no officer's life is worth a bag of dope.
The professional tactical community is not unaware of the issues being raised here. The last ten to fifteen years have seen much more of a professionalization of SWAT, including the growth of national organizations to help standardize training, and share lessons-learned.
That's fine, but you see, we (the citizens) don't necessarily trust you because, when the shit hits the fan, cops tend to stick together. There's nothing wrong or unusual about that instinct (lawyers do it, doctors do it most of all), but it makes us doubt the judgments that you otherwise come to.
Law enforcement has come a long way from the bad old days of a few decades ago, and SWAT will likely continue to evolve in the same fashion.
Really? I hadn't noticed. Not all cops are bad, and we may not agree on what makes one bad (after the hundredth time you've seen a cop "conform" his testimony, you get a little bitter about it, but some people might see it as okay if he did it for the "right" reasons). But as I noted above, these tactics put people in untenable situations that no amount of "professionalism" can solve.
Surely you're kidding. In which court do you propose to make you claim for damages?
Notice who usually dies in these incidents...the victims are overwhelmingly poor minorities.
Balko makes a really important point. If I, having done nothing wrong, can expect to live in a country where the police can scream police outside my house and call it an instruction (I can't make out what people are saying through my door even if I'm right there trying to listen, let alone asleep), then burst in, ritually execute my dog for checking on the noise, and then shoot me because I'm wearing a wristwatch they thought was a gun, what the heck am I as a citizen supposed to do?
It's the police officers who are most immediately creating the situation of violence and, worst of all, confusion. They DELIBERATELY create this sudden confusion, often on groggy half asleep people, and then try to blame people for being being confused and not responding exactly the way the officers want fast enough. It's ridiculous.
Instead I propose we make sure that SWAT style invasions are sufficiently expensive to the department that they have an incentive to use them only when absolutely necessary. This could be as simple as revoking federal funding (if it exists) for SWAT teams (though one might want to fund their maintenance for extreme situations). Alternatively I propose either allowing even uninjured individuals to sue the departments for unnecessary use of a home invasion or simple requiring the departments to donate to a victims of accidental shooting fund every time they make use of a SWAT style invasion.
Erm. Hardly. Probably less than half of that, and that's if they're sold as individual pills.
The need for SWAT:
Unfortunately sometimes you need to do dynamic entries. The examples I used above were a bit rare but what about the killer caught red handed who is holed up in his house, hoped up on meth and vowing to take police with him. Hostage situations as well. Or just anyone who is sufficiently desperate and violent that they would rather die then go down peacefully.
The problem is you can't determine if a dynamic entry is necessary just from the crime the suspect committed. Arresting a meth-crazed man with a long history of violence who is healed up in his home with an assault rifle and refusing to come out for simple drug possession is a much better candidate for a dynamic entry than a suburban mom suspected of murdering 10 people by poisoning a pie she gave her ex-husband. The problem with my suggestion (that may already be implemented) of special warrants is that it requires a judge unfamiliar with the situation to second guess the police. Additionally whatever solution must also deal with 'knock and announce' raids which are conducted in a SWAT style (yell police and bust in).
The Flushing Issue:
First of all it's just absurd to think that the risk of losing a bit of drug possession evidence is enough to warrant the significant risk of accidental death accompanying a dynamic entry. If the police think it is worth the risk of losing a human life then they should be willing to come in with tasers drawn and take the risk themselves. Given that we value things like doctor-patient and even priest-confessor privilege more than getting evidence it is hard to see how the risk of death and the psychological trauma of these midnight raids is worth it.
Besides, there are far safer ways than dynamic entry to make sure the suspect doesn't flush the evidence. Wait till the guy leaves the house and then pick him up and search the place. If you think he is dealing do an undercover buy. Surround the place and then cut off the water and power just before you enter so the sunk pump and water can't carry many drugs out to the sewer. I suspect that the police choose the SWAT style entry option because they get a rush out of it and it is easier than thinking up a good plan to catch the suspect with the evidence.
Qualified Immunity:
While I don't really know the law here it doesn't seem to obvious to me that QI is such a departure from other tort law. After all the airline or the hang gliding school can have you sign a wavier giving them some protection from the normal sorts of risks their service incurs the police can't.
On pragmatic grounds QI is necessary to prevent the rich from having excessive influence via the threat of lawsuit. Additionally, unlike most businesses the people the police interact with have nearly unlimited time and little disincentive from spending all their time filling frivolous lawsuits. The difficulty defending all of these in both time and money would be too great without an easy way to have them dismissed immediately.
Also I don't even think that removing QI is a appropriate remedy in this case. Removing QI would focus on the individual accidents, e.g., the police officer who mistook something for a gun. However, the real issue is the decision to use dynamic entry in the first place and suing the individual officer doesn't seem like an efficient way to deal with this problem. Also it raises the prison lawsuit problem again.
Also removing QI would primarily (only?) allow lawsuits when actual harm occurred, in most of which the police have a compelling defense. If someone tried to shoot at the police and got shot themselves they are simply never going to win their tort. Thus this does little to reduce the violence caused by the dynamic entry itself as the police won't lose those lawsuits.
We need a system that costs the police departments money whenever SWAT style raids are used inappropriately whether or not they result in harm. Hence my proposal that we either just impose a fixed charge on police departments for invading with their SWAT teams or allow even uninjured individuals whose homes are needlessly invaded sue. In either case the goal is to make sure the police department has strong internal pressures to avoid using SWAT style invasions when not needed.
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On another point does anyone know if the explosion of SWAT teams relatively recently (decade scale) is the result of federal funding for these teams. I remember being told that even small towns were setting up unneeded SWAT teams because the federal funding made doing so a net money maker and then once they had them they were inclined to use their shiny new toy.
You and I would probably agree about a lot, but I don't believe you've thought this issue through. If you or one of your guys corner a subject in a dark alley and he turns around with a shiny lighter in his hand, and you stitch him from stem to stern, I'm the guy you want on the jury. I understand that under stress, in the heat of the moment, in fear of your life, decisions must be made that aren't properly second-guessed by someone who's never been there. But think: in the situation we're discussing it's the homeowner who's in a state of life or death panic. The cops have had all week, in cold blood, to plan exactly what to do, the homeowner has seconds. The situation is reversed and **it's in his own home**.
Second: I don't know even a small fraction of the number of SWAT types you do, but I know half a dozen or so, including one or two of the most highly decorated cops in the country- and as good friends, not just acquaintances. I only know about the same number of tactical instructors, but some I know well have travelled to almost every continent in the world at the invitation of the host government to train and train with their police and military tac units. I believe you when you say you wouldn't resist a home invasion, but I have to believe you're in the minority. All the people I know- every single one- faced with the spectacle of their front door being systematically being knocked out of its frame, would be watching that door through their sights, agressively looking for a target. If you ask them they'll be happy to most colorfully tell you that. And in the case of a mere homeowner, without special training, everything gets worse. An average homeowner, waking to see a ski-masked man kicking in his bedroom door, grabbing his wife by the throat and waving a gun in her face, since he doesn't have the advantage of your experience, won't conclude "oh, that's only the police". Without your expertise he will probably conclude that something is seriously wrong. And it's HIS HOME!
Third: when you say "He (Balko) picks out some pretty horrendous incidents (that I won't even attempt to defend), and uses them to impugn the entire process. What he ignores are the thousands of warrants that are served each year without incident..." etc., I'm sure you're correct. But so what?
I know that most dentists don't anesthetize female patients into unconsciousness and rape them in the chair. But I don't follow the reasoning from "they rarely do that" to "therefore we shouldn't punish them when they do". I'm just not there yet. I would think that law enforcement more than anyone would want to weed out the "horrendous" abusers.
I think that because of an admirably loyalty to your partners you've placed yourself in an almost untenable position. There are sound reasons for dynamic entry. Much, maybe most of the times it's used, these reasons aren't present. In my opinion, of course.
One solution might be just to declare the War on Drugs over. Maybe won. Or, maybe a draw. That might have worked up through the first eight months of 1991. But now we have a War on Terror, and I suspect that it is going to keep the pressure up on a militarized police.