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Utah’s police reform movement confronts political realities

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Last fall, I wrote a six-part series for the Huffington Post on an interesting police reform movement in Utah. The movement started to coalesce after a botched drug raid on the Ogden home of Matthew David Stewart, who was growing some pot in his basement. The raid erupted into gunfire, resulting in the death of one police officer, the wounding of several others, and serious wounds to Stewart. Facing murder charges, Stewart later hanged himself in his jail cell.The reform movement is particularly interesting because it’s being led by Connor Boyack, a former campaign staffer for Utah Sen. Mike Lee and now the head of a state libertarian think tank, and by Jesse Fruhwirth, a longtime progressive activist for numerous causes, including the Occupy movement in Salt Lake City. (Salt Lake also has a reform-minded police chief and district attorney.)

Boyack and the ACLU of Utah have now produced a piece of legislation (PDF) aimed at cutting down on the number of forced entry police raids on private residences. The bill, sponsored by Utah state Rep. Marc Roberts (R-Santaquin) and state Sen. Luz Robles (D-Salt Lake City), would be the first of its kind in the country. But it’s also an illustration of just how difficult it can be to roll back a generation of increasingly aggressive drug war policies.

The initial plan was to push a bill that would limit forced-entry police raids to scenarios in which a violent crime was either in the process of being committed, or if police had good reason to believe would be committed if they didn’t enter the home immediately. The bill would have essentially eliminated the use of aggressive, volatile, forced-entry tactics to serve warrants on people suspected of drug crimes. It would have limited that sort of violence only to those cases where it was necessary to defuse an already violent situation. The proposed bill stops far short of that.

But before I get to that, the good parts of the bill:

First, the bill does zero in on the real problem with these raids — the forcible entry into private homes. Courts and policymakers typically talk about these raids in terms of “no-knock” and “knock and announce.” There’s long legal and common-law history behind the requirement that police knock and announce before entering a residence. So court rulings have naturally focused on hashing out when that requirement can and can’t be discarded. But in the real world, the difference between the two is negligible. If the police are serving a warrant on your home at 3 a.m., whether they immediately batter down your door or they knock, announce themselves, and wait 10 seconds before commencing with the battering ram is of little consequence to you. If you’re asleep in a back bedroom, you probably aren’t going to hear them. When you wake up, you’re going to be terrified, confused, and disoriented, especially since these raids are designed to confuse, disorient, and overwhelm the occupants of the house.

The objectionable part of these raids is the forced entry. That’s what causes the violence, the volatility, and the thin margin for error. A ceremonial knock and announcement beforehand may satisfy the law, but it does little else. This bill smartly recognizes that.

The bill also raises the evidentiary standard for forced entry police raids from “reasonable suspicion” to “probable cause.” That is, under the bill, police in Utah would need to demonstrate to a judge that if they don’t use forced entry tactics, there is probable cause to believe that the suspect would take actions that would meet one of the exigent circumstances outlined in the bill authorizing a forced entry. (More on that in a moment.) The bill also articulates that police should use the least amount of force necessary when serving warrants, and would require them to meet an added evidentiary burden if they want to serve a warrant with forced entry at night.

This is all new ground, in Utah or anywhere else. And if it passes, it would be the most significant reform on this issue anywhere in the country.

That said, there’s another provision that waters the whole thing down. One of the “exigent circumstances” under which the bill allows police to conduct forced entry drug raids is if the police can demonstrate (again, with probable cause) that the suspect could destroy the incriminating evidence if the police merely waited for him to come to the door. The problem with allowing police to use this justification is that it lets in the vast majority of situations for which these tactics are already used.

The one exception would be a case such as Stewart’s. It would be difficult to argue that he could have destroyed the 15 or so pot plants growing in his basement. But outside of plants, allowing for the “destruction of evidence” exception basically permits forced-entry raids for just about every other variety of drug suspect. In fact, if you think about it, it actually affords more protection to serious drug dealers than it does to small-time drug dealers and drug users. It’s easier to destroy a small quantity of drugs than a large one.

Boyack says that adding the exception was a concession necessitated by political realities. “As it is, this bill will likely be opposed by every law enforcement group in the state,” he says. “If we hadn’t added the exigent circumstance exception, it really had no chance of passing.”

Indeed, law enforcement officials are already speaking out against the bill. Greg Skordas, president of the Utah Fraternal Order of Police, told local TV station KSL, “We’ve had over 200 years of Fourth Amendment law in this country and it’s already very, very difficult for police to get a search warrant.”

My own research suggests otherwise. The officers I interviewed for my book told me that judges almost always approve search warrants, and even when there’s the occasional judge who asks tough questions, police know to avoid him and go to a judge known more for wielding a rubber stamp. The most recent academic study I could find on how often judges deny search warrants was from 1984 (its conclusion: hardly ever). But more recently, after a botched drug raid in Denver claimed the life of Ismael Mena in 1999, the Denver Post looked into how judges in that city handled requests for no-knock warrants. Over the course the prior year, police in Denver requested 163 no-knock warrants. The city’s judges granted 158 of them. Defense lawyers told the paper they were surprised the judges had rejected five.

Boyack says part of the goal of the legislation is to get police to rethink their tactics, and for judges to give more scrutiny to warrants. “Admittedly, a lot of it is symbolic,” he says. “But we’re hoping the bill will cause judges to take their role in protecting the Fourth Amendment more seriously. So when the police come to them wanting to break into someone’s house in the middle of the night over some pot, he might say, ‘This is ridiculous. If you want to arrest this guy for pot, you need to find a less violent way to do it.'”

Matthew David Stewart worked at Wal-Mart, for example. With a little more investigation, the Weber-Morgan County Narcotics Strike Force easily have figured that out. They could have then apprehended Stewart at his job instead of taking a battering ram to his door after nightfall. It seems safe to say that had they done that, both Officer Jared Francom and Stewart himself would still be alive.

But Boyack concedes that the bill has no enforcement mechanism. The police could continue to apply for forced-entry warrants for low-level crimes, and judges could continue to grant them, and there’s really nothing in the bill to stop them. “We have to start somewhere,” he says. “This at least will begin the conversation. If the judges want to continue to shirk their responsibilities, then at least we can now start collecting the data to make the case against them when they’re up for reelection.”

To that end, Boyack has another bill in the works. After the botched raid on Berwyn Heights, Md., Mayor Cheye Calvo in 2008, the Maryland legislature passed a transparency bill requiring every police agency in the state that uses a SWAT team to issue twice-yearly reports on how often the SWAT team is used, for what purpose, what was found after the raid, whether any shots were fired, and other data. The bill doesn’t restrict the use of SWAT or forced entry tactics in any way. But it does require police agencies to produce data, so policy makers can start to assess just how often these raids happen, and what they’re finding. (Initial figures showed that about half the SWAT raids were on people suspected of “misdemeanors and non-serious felonies.”)

So far, Maryland is the only state with even a transparency bill. Boyack says he plans to push a similar bill in Utah. And he’s more optimistic about that one. “A number of law enforcement officials have told us they’ll back that one,” Boyack says.

The prospects for the reform bill, however, are less certain — even in its watered-down state. A few years ago, a legislator in Georgia suggested an amendment to a bill that would have prohibited the use of SWAT teams for misdemeanor crimes. The amendment failed, after lobbying from law enforcement groups. Police organizations carry a lot of weight in state legislatures, and not just in conservative states such as Utah. Republicans fancy themselves the law-and-order party. Democrats have for a long time defensively legislated against the smear that they aren’t for law and order. And of course the police unions have the ear of both parties, because they’re police, and because they’re unions.

The lesson from Utah may be that even modest police reforms are going to be difficult.