On Tuesday, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit issued a ruling on the sort of issue you’d hope a federal appeals court would never need to rule on — whether the government should be allowed to use SWAT-style tactics to perform regulatory inspections.
At issue were a series of police raids on barbershops around the city of Orlando. The raids were basically fishing operations for drug crimes and to recruit confidential informants. All of the raided shops were black- or Hispanic-owned. The problem is that, because they were fishing expeditions, the police didn’t have enough evidence to obtain a warrant. Instead, the police asked an occupational license office to send along an inspector. Voila! These were no longer drug raids. For the purposes of the Fourth Amendment, they were now officially licensure inspections that just happened to include armored cops storming the businesses as if they were harboring an ISIS sleeper cell.
From the ruling:
It was a scene right out of a Hollywood movie. On August 21, 2010, after more than a month of planning, teams from the Orange County Sheriff’s Office descended on multiple target locations. They blocked the entrances and exits to the parking lots so no one could leave and no one could enter. With some team members dressed in ballistic vests and masks, and with guns drawn, the deputies rushed into their target destinations, handcuffed the stunned occupants — and demanded to see their barbers’ licenses . . .
We first held nineteen years ago that conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection, violates clearly established Fourth Amendment rights. . . . We reaffirmed that principle in 2007 when we held that other deputies of the very same Orange County Sheriff’s Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity. Today, we repeat that same message once again. We hope that the third time will be the charm.
Here’s how the raid went down at one of the shops:
Two plain clothes officers initially entered the barbershop to observe any potential violations. Five or six barbers were on duty at the time, and the shop was filled with anywhere from ten to twenty-five waiting customers. As the first day of the school year was approaching, several of the customers in the shop were children.
Shortly after the arrival of the plain-clothes officers, a “whole bunch” of police cars pulled into the shopping plaza and completely blocked off the parking lot, preventing all ingress and egress. Officers then “rushed into” Strictly Skillz “like [a] SWAT team.” Based on the plaintiffs’ collective recollection, it appears that somewhere between eight and ten officers, including narcotics agents, descended upon the barbershop, along with a [Florida Department of Business and Professional Regulation] inspector. Some of the officers donned masks and bulletproof vests and had their guns drawn. The officers immediately ordered all of the customers to exit the shop and announced that the shop was “closed down indefinitely.”
Plaintiffs [Reginald] Trammon, [Jermario] Anderson, and [Edwyn] Durant were in the barbershop when the officers stormed in. The officers directed Anderson and Durant to present their driver’s licenses for identification, and Inspector [Amanda] Fields instructed Anderson to retrieve his barbering license from his work station. Trammon and Anderson, who were in the process of cutting customers’ hair, were then immediately patted down and handcuffed with plastic zip ties. Anderson was handcuffed by a masked officer, and Trammon was restrained by two deputies who were not wearing masks. Sometime after Trammon was handcuffed, he informed the officers that he was in possession of a concealed firearm for which he had a valid concealed-weapons permit. The officers patted him down to retrieve the weapon and located the permit without incident.
[Police Cpl. Keith] Vidler, who was the supervisor on the scene, admits that he ordered deputies to detain Trammon. When Trammon argued to one of the officers that he had done nothing wrong, the officer responded, “It’s a pretty big book, I’m pretty sure I can find something in here to take you to jail for.” Durant, though told to “sit down and shut up,” was not handcuffed and was eventually permitted to leave the shop.
Shortly thereafter, [Brian] Berry, who had been behind the shop in the parking lot when the officers initially entered, walked into Strictly Skillz through the back entrance. Upon seeing that Trammon and Anderson were in handcuffs and being patted down by officers, Berry made his way to the front of the shop, identified himself as the owner, and demanded to know what was going on and why Trammon and Anderson were in handcuffs. Deputy Leslie then immediately placed Berry into metal handcuffs and patted him down. Though angry, Berry did not physically resist and complied with the officers’ instructions.
While Trammon, Anderson, and Berry were restrained, Inspector Fields and the OCSO officers conducted their “inspection” of the barbershop. OCSO officers called in the barbers’ driver’s license information to ascertain whether any of them had outstanding warrants, and Inspector Fields, for the second time in two days, checked the barbering licenses to ensure that they were still valid and current. The officers, along with Inspector Fields, then searched the premises by inspecting each of the barbers’ workstations and looking through their drawers. OCSO officers also went to the back of the shop without Inspector Fields and searched through an unlocked storage room where no barbering services were rendered.
At the conclusion of the inspection, it was determined that all of the barbers had valid licenses and that the barbershop was in compliance with all safety and sanitation rules. No criminal violations were discovered, and Berry, Anderson, and Trammon were released from their handcuffs. The entire inspection lasted approximately one hour. After the officers and Inspector Fields left, the barbershop resumed operations.
There was a series of raids like this one across Orlando during the summer of 2010. One such series of coordinated raids targeted nine barbershops and produced 37 arrests, 34 of which were for “barbering without a license,” a misdemeanor for which only three people had ever previously been arrested in the state of Florida.
But it isn’t just Orlando. We’re increasingly seeing police departments, state and federal regulatory agencies and federal police agencies use more force to police increasingly petty offenses. I documented a few other examples in a 2010 article about the Orlando raids:
New Haven recently sent a SWAT team to a local bar to investigate reports of underage drinking. Last week the Atlanta City Council agreed to pay a $1 million settlement to the customers and employees of a gay nightclub after a heavy-handed police raid in which 62 people were lined up on the floor at gunpoint, searched for drugs, and checked for outstanding warrants (and, incredibly, unpaid parking tickets). The September 2009 raid was conducted after undercover vice cops claimed to have witnessed patrons and employees openly having sex at the club. But the police never obtained a search warrant. Instead the raid was conducted as part of an alcohol inspection. There were no drug arrests, but eight employees were arrested for permit violations.
I’ve since posted about incidents in which SWAT teams were sent to raid someone suspected of credit card fraud and a woman involved in an ongoing zoning dispute with the local government. Of course, we’ve also seen hundreds of SWAT-style raids on people in the medical marijuana business, even though they pose little threat to police or the public. There have also been SWAT raids on doctors and patients suspected of crimes involving prescription painkillers, even though, again, there’s little reason to think these suspects are dangerous. Last year, a spokesperson for the St. Louis County, Mo., police department told a local TV station that all felony warrants there are now served with SWAT teams, regardless of the crime.
So a level of force once reserved for hostage situations, bank robberies and active shooters is now being used on low-level drug offenders, people suspected of white-collar crimes, people who have unkempt property and to make sure the local bar is properly labeling its beer. Keep in mind, too, that anyone who happens to be in these homes or businesses at the time of the raid gets subjected to the same terror, fright, and abuse as the suspect or business owner.
The good news here is that the majority of the panel got this case right, coming to the rather common-sense conclusion that “a criminal raid executed under the guise of an administrative inspection is constitutionally unreasonable.” More good news: In 2009, the U.S. Court of Appeals for the 5th Circuit came to a similar conclusion. The bad news is that this was a split decision by the three-judge panel. Moreover, at least one other federal appeals court — the U.S. Court of Appeals for the 4th Circuit — has ruled the other way. In 2010, that court found that it was not unreasonable for a Virginia town to send a 50-plus-member police team — some donning face masks and camouflage and toting shotguns — to perform an “alcohol inspection” on a pool hall. (On “Ladies’ Night” to boot.)
That the federal appeals courts are split over whether it is reasonable to use SWAT-like tactics to perform regulatory inspections is a pretty good illustration of just how far police militarization has come, and just how much damage the trend has inflicted on the Fourth Amendment.