First, some background on the raid itself. On the night of Jan. 5, 2011, police in conducted a drug raid on a Fountain Street apartment. They were looking for 2o-year-old Joseph Bushfan and his cousin Devon Talbert, who lived in Boston. Bushfan was the son of Stamps’s wife, Norma Bushfan-Stamps. Police alleged that two confidential informants had purchased crack cocaine from Bushfan and Talbert earlier that evening and on prior occasions. Notably, neither the federal district court ruling nor the DA’s report on the raid specifically say that the drug transactions were made within the residence. Only “around” the house or near the premises. At worst, then, Stamps was guilty of marrying a woman whose adult son was allegedly selling drugs somewhere near Stamps’s home. Bushfan was arrested minutes before the raid when he came out of the residence. But the police went ahead and raided the place anyway.
The events leading up to Stamps’s death are a vivid illustration of just how thin the margin for error in these raids can be, and how the slightest contingency can result in a calamity. When the door came down and the flash grenade went off, Stamps was watching a basketball game in his pajamas. By the time Officer Paul Duncan reached him, the 68-year-old was lying face-down on the floor with his arms over his head, following police instructions. Duncan was actually the officer manning the battering ram. But this particular raid was met with an uncooperative door. From an article about the DA’s report in the MetroWest Daily News:
Duncan says it was unusual for him to be the first through the door, since general practice calls for the “breacher” – the officer who wields the battering ram – to smash open a door, step aside as others rush in single-file, and then enter as the last officer in the “stack.”In this case, he said, the center of the door broke, but the door remained in the frame. Concerned that other officers might get hung up on the frame, he pushes through first, clearing the opening.As he scans the first room and sees no one, Duncan says, he moves toward a hallway, where he finds a man, face down on the floor, with his arms extended in front of him.Duncan describes moving toward the man – who turned out to be Stamps – with his M4 in the “low-ready” position, a round in the chamber and the rifle in semi-automatic, or single-shot, mode. “I see a man laying on his stomach, somewhere in the hallway,” Duncan tells Forster in the interview on Jan. 6, the day after the shooting.“Probably if I were to guess, a couple of feet past the threshold, maybe two, maybe three feet past the threshold. … The other two SWAT operators are gone (into another room). I look down, I see the individual laying there. At that time, he’s laying on his stomach, his hands are, I believe, are above, I believe his elbows were resting on the floor. His hands and fingers are above him, and they aren’t on his head, they’re hovering above his head.“As I approach him at the threshold, I recall his head moving up toward me. And his hands moving like in a motion of, you know, ‘Who’s this? What’s coming in here?’ So I see the hands moving and head go up, not a great distance, just enough my attention automatically went to his hands and his head.”Duncan says the two other SWAT team members who were in another room “had not checked him (Stamps) for any weapons. I know that there was no check of the area for any weapons, other than maybe a quick one with their eyes,” Duncan tells Forster. “I make a decision at that point. My options are, focus on him like this and say, ‘Don’t move, don’t move.’ But what happens if there’s a gun or something hidden anywhere and he just reaches quick? What happens?“Well, I’m still in a position where I gotta make a decision. Do I fire, do I not fire? In my mind as quickly as it was going, I made a decision, I’m gonna take that out of this equation.“I decided I’m going to go beside of him, get his hands behind his back, not to handcuff him, but just tighten up on his hands and kneel down on him so he can’t reach for anything at all. In the back of my mind it takes any threat that maybe someplace I can’t see completely out of the equation as far as any firearms or weapons,” Duncan says.
Duncan wasn’t used to being the first man in, and by his own account seemed overwhelmed by the situation. Duncan told investigators that as he moved to pull Stamps’s arms behind him, he fell backwards, somehow causing his gun to discharge. Stamps, a grandfather of 12, was shot dead in his own home, while fully complying with police orders during a raid to serve a warrant for nonviolent, consensual drug crimes for which he had never been implicated.
A couple of months later, Middlesex District Attorney Gerry Leone issued a report clearing Duncan and the rest of the SWAT team. That report described the shooting this way:
As Officer Duncan moved to the right of Mr. Stamps, just past Mr. Stamps’ shoulders, he had to step to his left. As he stepped to his left, he lost his balance, and began to fall over backwards. Officer Duncan realized that his right foot was off the floor and that the tactical equipment that he was wearing was making his movements very awkward. While falling, Officer Duncan removed his left hand from his rifle, which was pointing down towards the ground, and put his left arm out to try and catch himself. As he did so, he heard a shot and then his body made impact with the wall. At that point, Officer Duncan, who was lying on the ground with his back against the wall, realized that he was practically on top of Mr. Stamps and that Mr. Stamps was bleeding.
Perversely, the DA’s reported recorded that the all of the ballistics gear Duncan was wearing to protect him from drug suspects is what caused him to trip, which caused him to fire his gun, which killed Stamps. But note the exonerative tense. The DA’s press release never actually states that Duncan fired his weapon. Only that he “heard a shot,” and then noticed that Stamps was bleeding. In fact, at one point a DA investigator questioning Duncan — an official who is supposed to be impartial — suggested that maybe Duncan never really fired his gun at all, that it just fired on its own after striking something as Duncan fell. (More on that in a bit.)
Before we get to the federal judge’s ruling on the Stamps family’s lawsuit, a few points:
- I don’t think criminal charges against Duncan would have been appropriate. There’s no reason to think he deliberately set out to kill Stamps or killed him in a moment of anger. It appears to have been an accident — the regrettable result of a volatile, high-risk situation.
- That said, the people who are subjected to these raids aren’t given the same sort of deference when they make similar mistakes under similar circumstances. Shoot a cop during a drug raid, and you’re likely going to prison. It doesn’t matter if the person thought the cops were invading criminals or rival drug dealers. It doesn’t matter if you aren’t a drug dealer at all. (There have been a couple recent exceptions, but they’re far outnumbered by the rule.)
- The double standard is exacerbated by the fact that it is the police who create the volatility and risk by insisting on using dynamic entry tactics to serve drug warrants. The police create the circumstances that excuse their errors — errors that can cause the death of innocent people. Those on the receiving end of these raids are expected to behave perfectly, to show impeccable judgment and restraint, despite the fact that the tactics are designed to disorient them, confuse them and take them by surprise.
- Eurie Stamps is dead. He was innocent. He was killed due in part to the circumstances created by serving a search warrant for a nonviolent crime with extraordinarily violent tactics. Local law enforcement officials found no fault with the officers, and no fault with the tactics. The only possible conclusion: The death of an innocent 68-year-old man is an acceptable consequence of our efforts to stop people from getting high.
- Do you think it was even marginally more difficult to buy crack cocaine in Framingham on the night after Stamps’s death than it was the night before? Or in other words, what exactly is all this violence achieving?
On to the recent court ruling. To his credit, Federal District Court Judge F. Dennis Saylor, IV probably could have dismissed all the claims brought by Stamps’s family. Duncan’s decision to hold Stamps at gunpoint despite Stamps not being a suspect isn’t at all uncommon, and the tactic has certainly been upheld by other federal courts. (The Stamps family may lose even here on appeal.) Perhaps Saylor felt some empathy for the man. Whatever the reason, he found Duncan’s actions to be excessive.
It is undisputed that Duncan entered the apartment with his gun drawn, moved the safety from “safe” mode to “semi-automatic,” pointed the weapon at Stamps, and placed his finger inside the guard on the trigger. He then shot him in the head, albeit unintentionally. Although there is apparently no issue with respect to the reasonableness of drawing the weapon, there are substantial issues as to the reasonableness of Duncan’s conduct as a whole.First, Stamps posed no actual threat. He was an elderly man. There was no struggle of any kind when the police encountered him. He immediately cooperated with the police and lay down on this stomach, with his hands visible. He made no movement or sound of any kind to indicate any type of resistance, force, or flight.Second, Stamps was not a suspected threat. The police were not surprised by his presence at the scene (which was his own home). He was not a criminal suspect. He had no history of violence. Indeed, the police officers had been told that Stamps posed no known threat to the police.Third, the potential harm posed to Stamps from the form of restraint used by Duncan was high—indeed, extremely high. Duncan did not use his hands, or a nightstick, or a chokehold. He did not restrain Stamps with handcuffs. Instead, he pointed a semi-automatic firearm in apparent close proximity to Stamps’s head. The likely harm to Stamps, should a misstep occur, was not a mere bruise or broken bone, but death or serious injury.Fourth, Duncan’s intentional actions greatly increased the risk of accidental harm. By turning off the safety and putting his finger on the trigger, he created the very real possibility that any bump or jolt—or nervous twitch—would result in Stamps’s death.Fifth, there was no obvious justification or need for Duncan to have turned off the safety and put his finger on the trigger, inside the trigger guard. The placement of his finger apparently violated police department policy, and possibly proper police practice. See Sorenson v. McLaughlin, 2011 WL 1990143, at * 6 (D. Minn. 2011) (officer’s placement of finger inside trigger guard that led to accidental shooting violated police training). There is no reason to believe that Duncan could not have quickly moved the safety, and put his finger inside the guard, had any actual threat materialized.Under the circumstances, a reasonable jury could find that Duncan’s actions leading up to the shooting were objectively unreasonable, and therefore that he employed excessive force in violation of the Fourth Amendment.
I haven’t seen the briefs in this case, so I’ll to defer to Judge Saylor on the matter of whether Duncan putting his finger on the trigger is “undisputed” for the purposes of the lawsuit. But at least until the lawsuit, no one for the state was conceding that point. In fact, as noted above, at one point an investigator for the DA’s office appeared to be coaxing Duncan into answers that would limit his liability and the liability of the state.
“I know my right hand has the rifle, I’m trying to pull it away,” Duncan responds. “I’m trying to get it toward the wall. But it was … as long as it sounds like … it seems to me now it was a millisecond. Under the trigger guard there is what I would classify as a hand hold or small grip similar to the grip on your sidearm. As I’m going backwards, or falling, I was trying to control that, but it seems to me there was a thousand thoughts going on in my head. Prior to falling, my index finger was on the outside of the trigger guard. And I don’t know ….”Forster: “Whether it made it in there or not when you’re falling?”Duncan: “But at some point the weapon discharged.”Forster: “We don’t know if the weapon discharged because you pulled the trigger or because of the impact of you falling.”Duncan: “I just know that it discharged. I don’t know consciously that my finger was in there (inside the trigger guard). I just know that the weapon discharged.”
Assuming Saylor’s decision to allow two of the 10 claims to go to trial is upheld on appeal (and again, that is certainly no guarantee), it seems likely that Duncan will offer the same testimony to a jury. He’ll say he initially had his finger outside the trigger guard, but that he may have breached the guard as he fell, causing the gun to fire, or perhaps it fired from impact. It will be entirely sympathetic testimony given by a guy who will no doubt honestly portray the panic, intensity and life-and-death stakes he was feeling in the moment. Juries don’t like to rule against cops, especially well-intentioned ones.
The rest of Saylor’s opinion — the portion striking down the rest of the Stamps family’s claims — is less controversial. And that’s what’s really scary. For example, Saylor dismissed the family’s claims against the city of Framingham because in order to even get to a jury, they have to show an official policy or lack of proper training to be a direct causal link to the constitutional violation. One might think that a policy of serving warrants for low-level drug crimes with battering rams, flash grenades and a SWAT team could foreseeably lead to the death of an innocent person. Indeed it has, dozens and dozens of times. But such tactics have already repeatedly been upheld by the courts, including the U.S. Supreme Court. So Stamps’s family would have had to show that in a world where such tactics are routinely used for such low-level crimes, there is something uniquely deficient about the way Framingham carries them out. They didn’t. Claim dismissed.
Saylor dismissed the family’s claim for punitive damages on similar lines. To collect punitive damages, a plaintiff in a civil rights suit must show that the offending government actor showed “reckless or callous indifference to the federally protected rights of others.” Again, you could certainly argue that conducting a volatile, heavily-militarized raid for low-level drug offenses fits the bill. You could also argue that the decision to proceed with the raid even after the main suspect had been apprehended outside the residence might qualify. But again, the courts have already upheld the use of these tactics to serve drug warrants. Claim dismissed.
Stamps’s family also tried a wrongful death claim under Massachusetts law. But under that law, state employees are protected from liability in wrongful deaths caused by negligence, even reckless negligence. You must show that the death was intentional. There’s no evidence that Duncan intentionally killed Stamps. Claim dismissed.
This post isn’t really a criticism of Judge Saylor or his opinion. From my reading, he’s simply following case law and federal and state statutes. This is more of an attempt to quantify the utter inhumanity of the law itself. So let’s summarize: The Framingham police conducted an extraordinarily violent, unnecessary raid to serve a warrant for a drug crime. They conducted the raid even though they had already apprehended their primary suspect. They then knowingly subjected people they knew to be innocent to terror, violence and risk. All of this is resulted in a grandfather of 12 shot and killed in his own home, in his pajamas, while complying with police orders — a man that everyone acknowledges is innocent. Now, four years later, that man’s family is still fighting to be compensated for their loss. They have yet to even see a jury. At present, their lawsuit has been whittled to two claims against one officer, and appear to rest on whether he put his finger inside his trigger guard prior to stumbling or did so in the act of falling. In any case, because his actions weren’t intentional, at the moment the best they can hope for are compensatory damages. But even those two remaining claims could be tossed if the state appeals to to the First Circuit and wins.
It’s true that only a tiny percentage of these raids end with the death of an innocent person. But a tiny percentage of a huge number — some 60,000+ per year by one estimate — is still a lot of needless death. And just as the Eurie Stamps case is about much more than the actions of Officer Duncan, the debate here is about much more than handful of innocents killed each year. Our police departments are using extraordinary force and violence not to apprehend active shooters or to storm hostage situations but as an investigative tool for routine drug crimes. Occasionally, this results in innocent people wrongly raided and terrorized. Sometimes it results in death. But even when it all goes to plan, it results in doors battering-rammed, guns pointed, flash grenades detonated and a mini-war waged against people who are still merely suspects in consensual, nonviolent crimes.
In a free society, that last point in and of itself ought to bring howls of outrage and demands for change. Instead, it’s barely controversial.