Earlier this month, a three-judge panel from the U.S. Court of Appeals for the Fourth Circuit issued an appalling decision in a lawsuit stemming from a fatal 2005 drug raid in Maryland. In fact, the opinion encapsulates everything that’s wrong with sending militarized police barreling into homes to serve search warrants on people suspected of nonviolent, consensual crimes.
Here’s what happened:
In May 2005, police in Cambridge, Md., received an anonymous tip about drug activity going in the duplex at 408 High St. (Yes, that’s the actual name of the street.) They did a trash pull and found what they claimed to be two plastic bags, one from each apartment, that contained marijuana residue. That’s it. That’s the all probable cause they had for what happened next.
At 4:30 a.m. on May 6, SWAT teams from the Cambridge Police Department conducted simultaneous raids on the two apartments. According to the police, during the raid on the upstairs apartment, resident Andrew Cornish emerged from his bedroom carrying a knife, which was still in its sheath. The police say Cornish then confronted them, at which point one of the officers shot Cornish in the face and forehead. Cornish died. According to the court, the police found “a small amount of marijuana” in the apartment. By the officers’ testimony, the entire raid took less than a minute.
Cornish’s father, Andrew Kane, filed a lawsuit. After a lot of pretrial procedural motions, a federal jury finally ruled in Kane’s favor in December 2012, awarding him $250,000. The police and city appealed. And last month, by a 2-1 vote, the Fourth Circuit panel overturned the jury’s award.
There’s a lot to break down here. But let’s first start by noting one very important issue that is not in dispute — whether the massive amount of force the police brought to bear in this case was reasonable under the Fourth Amendment. As far as the federal courts are concerned, it was, and this is settled. As Judge Pamela Harris points out in her dissent, “The point here, to be clear, is not to take issue with the Officers’ decision to execute a search warrant based on marijuana traces by way of a military-style nighttime raid.”
Harris is correct. The courts long ago decided that dangerous, punishing SWAT-style raids to search for pot — even when there is no evidence of distribution — are reasonable under the Fourth Amendment. A lawsuit arguing otherwise won’t last long.
But it’s worth considering what it means for this to be settled law. In the 20 or so years leading up to the American Revolution, the British crown began stationing troops in the streets of Boston to enforce England’s tax and import laws. The British troops and enforcement officers were armed with writs of assistance, or general warrants that gave them broad powers to search colonists’ homes. They didn’t need to establish probable cause, or even specificity as to a person or residence. The abuse that came with those warrants made Boston a hub of revolutionary fervor, and memories of that abuse are why the Founders created a Fourth Amendment after the war.
But while today’s search warrants require both specificity and some evidence of wrongdoing, in many ways the colonists had more protections than we do today. For example, the British soldiers could serve warrants only during the day. And they were always required to knock, announce themselves, announce their purpose and give the resident time and opportunity to come to the door to let them in peacefully. This was all in observance of the Castle Doctrine, or the idea that the home should be a place of peace and sanctuary, and that it should be violated only in the most extreme circumstances. Even then, the Castle Doctrine had a long and rich history in English common law, a tradition that carried over in the United States until the Supreme Court began chipping away at it in drug cases, beginning in about the 1960s.
Today, of course, authorities can break into homes without knocking. They can conduct raids at night. In theory, we’re today protected by the requirement that authorities show probable cause before serving a warrant, but given the deference judges give to police and prosecutors in much of the country and the boilerplate language you’ll often find on warrant affidavits, you could make a good argument that in many jurisdictions the probable cause protection is little more than a formality. In any case, if the Fourth Amendment is due to the Founders’ offense at British soldiers forcibly entering homes in daylight hours after knocking and announcing to search for contraband, it seems safe to say that the Founders would be appalled by the fact that today, dozens of times each day, heavily armed government officials break into homes, often at night, without first knocking and announcing, in order to conduct searches for contraband.
Drug raids weren’t always conducted this way. In fact, as I point out in my book, the no-knock raid wasn’t even something that organically grew out of policing. Police did sometimes enter homes without knocking. But it happened only if, while serving a search warrant, they observed some exigent circumstance that compelled them to do so — for example, if they heard someone getting beaten or hurt inside or observed through a window a resident loading a gun. But the idea of a pre-planned no-knock raid is a relatively new phenomenon. It was brought to us by drug-warring politicians, first through Gov. Nelson Rockefeller in New York, then via a Senate aide named Don Santarelli, who was recruited to the Richard Nixon presidential campaign in 1968, specifically for the purpose of coming up with tough-on-crime-sounding positions Nixon could stake out to appeal to (white) middle-class voters.
The Supreme Court has on several occasions recognized the knock-and-announce requirement and its relation to the Castle Doctrine, but the court has also been chipping away at both for decades, nearly always in drug cases.
This brings us back to the Maryland raid that ended Andrew Cornish’s life. In that raid, the police actually violated the already watered-down knock-and-announce requirement. Not only that, they were caught lying about whether they knocked and announced before entering. They initially claimed that they pounded on the door and loudly announced themselves two times before taking a battering ram to the door. But the residents of the downstairs apartment, which was raided at the same time, testified that they never heard a knock or an announcement. Moreover, the outer door to Cornish’s apartment showed no signs of having been smashed open with a ram. Both the trial court and the appeals court that ruled against Cornish’s father acknowledge both that the police violated the knock-and-announce rule, and that they lied about doing so.
But that still wasn’t enough for Cornish’s father to win damages. The majority found that even though the police violated Cornish’s constitutional rights by failing to give him the opportunity to come to the door and let them in peacefully — as required by centuries of common law — Cornish’s death wasn’t the fault of the police officers who entered his home and shot him. Instead, the majority ruled that Cornish is responsible for his own death, because according to police, he should have known that they were the police when he attacked them with a sheathed knife, and his act of knowingly attacking the police after they had entered his home supersedes their failure to knock and announce.
It is an utterly absurd ruling. Police don’t raid homes at 4:30 a.m, with battering rams in order to let suspects know that they’re the police. They raid homes at 4:30 a.m. with battering rams for the very purpose of disorienting and confusing suspects so that they can take them by surprise. You can’t simultaneously argue that confusing and disorienting a suspect is necessary to protect the safety of police officers, and that the same suspect you’re trying to confuse and disorient should be able to wake from a sleep, process what’s going on around him, immediately discern that the armed men who have just broken into his home are police serving a warrant and not criminals there to do him harm, and that should he make an error in judgment, he alone is responsible for the consequences — whether it’s the end of his own life, or his killing, or the injuring of one of the police officers.
Actually, it may not be logically consistent, but you can make both arguments. The police do it all the time. And the courts back them up.
But it’s even worse than all of that. It’s one thing to say a career criminal or major drug distributor should be aware of the possibility that he might be raided by the police. But if you’re a low-level offender — or an innocent person raided by mistake — there’s even less reason to immediately assume that the armed intruders in your home are cops. Judge Harris points out that this was particularly true of Cornish.
Cornish was not some drug kingpin who might be on notice as to the possibility of an unannounced police raid. On the contrary, Cornish enjoyed a cordial relationship with the police; one of the Officers testified that while on duty he would occasionally stop by Cornish’s building and share a Pepsi with Cornish on the front porch. And as noted above, as to Cornish, this was a case about trace amounts of marijuana found in a trash rip, which ultimately led to the seizure of a small quantity of marijuana in Cornish’s apartment — not exactly the stuff of no-knock nighttime SWAT raids.
Unfortunately, it too often is.
Harris makes another important point in her dissent: There’s a huge double standard at play here in the sort of composure, good judgment and decision-making the courts demand during these raids. That is, they demand all three from the people on the receiving end of the raids, and none of the three from the police.
Those are precisely the circumstances — “tense, uncertain, and rapidly evolving” — under which we give police officers the benefit of the doubt when it comes to their perceptions …
In evaluating the use of force by officers, we make allowances for the fact that such situations can be exceptionally confusing and fast-moving, with officers required to make split-second judgments under suboptimal conditions.
In the context of a rapid-deployment and high-pressure nighttime raid, police officers cannot be held to “the 20/20 vision of hindsight,” (Graham, 490 U.S. at 396) and must instead be judged under a more forgiving standard.
Indeed, the Officers here argued as much to the jury, in defending against Kane’s claim for excessive force. According to the Officers, for instance, events in the apartment were so fast-moving and conditions for observation so poor that they could not discern — nor be expected to discern — that what Cornish held in his hand was a knife in a sheath and not, as they thought at the time, an unsheathed knife, or perhaps a machete or a pipe. The jury apparently credited that account, and decided the excessive force claim against Kane. There is no reason I can think of that the same jury could not apply the same standard to Cornish — who, unlike the Officers, had the benefit of neither training nor advance warning when he found himself caught up in the tumult of a military-style nighttime raid — and assume that Cornish, too, would be unable to exercise the powers of careful discernment that could be expected under less fraught circumstances.
It is a glaring double standard — not just in this case, but in hundreds like it.
But what’s especially troubling about this ruling is that the majority not only gives enormous deference to police and shows little to no consideration for Cornish, but it also gives deference to the police narrative even while acknowledging that the police have already lied about both knocking and announcing and the method by which they entered Cornish’s apartment. The majority simply assumes that everything in the police narrative after those lies is accurate. For example, the opinion defers to the police account that the room in which Cornish confronted the officers was “illuminated” (which leads the majority to conclude that he should have seen the relatively small police insignia on their uniforms). But Harris points out that there’s good reason to think the room wasn’t all that illuminated. Indeed, the trial jury obviously didn’t think so.
The two-judge majority simply trusts the police when they say that Cornish had to have known they were law enforcement before he attacked them. But very little about that scenario makes sense. Why would a guy with only a small amount of pot knowingly take on a heavily armed SWAT team? And why would he go at them with a sheathed knife? These would seem to be the actions of someone trying to scare off a criminal intruder. One of the officers had an answer to that question, though it was rather unsatisfying: “People do irrational things.”
Not only does the majority wholly defer to the police narrative about everything that happened after the lies, but it also gives Cornish’s father an impossible hurdle to clear before it will even consider the fact that perhaps the police weren’t being entirely truthful about other aspects of the raid. From the majority opinion:
Drawing all reasonable inferences in Kane’s favor, this evidence reveals nothing about Cornish’s state of mind as he advanced on the Officers or his opportunity to recognize them as police.
The majority is saying here that instead of asking whether a reasonable person in Cornish’s position might have made the same mistake he did (and again, even that is only if you believe the police officers’ account of the raid), the burden is on Cornish’s father to prove that his son did not know that the raiding police were cops. This would be a difficult standard had even Cornish had survived the raid. It’s an impossible standard given that he’s dead.
But this part of the ruling is even more preposterous given that a jury already determined that Cornish probably didn’t know that the raiding cops were police. In order to overturn a jury verdict, the judges not only had to make their own assessment of the evidence (already a pretty rare thing for an appeals court to do), they also had to have determined that the evidence was so overwhelming that no reasonable juror could possibly have rendered the verdict given by this particular jury. So these two federal judges are not only stating that they believe Cornish knew he was being raided by a heavily armed SWAT team when he decided to take them on with a sheathed knife, but also that no reasonable person could possibly think otherwise. According to these two judges, this particular jury could only have been made up of unreasonable people.
It’s just an astonishingly arrogant and deferential opinion. A couple of other points:
First, note how long it took to get even this far in this case. It has now been almost 10 years years since Cornish was killed. And I suspect Cornish’s father will appeal. When you sue the government, justice comes slow, if it comes at all.
Second, in the 2006 case Hudson v. Michigan, the Supreme Court ruled that even when police violate the knock-and-announce rule during a raid, the exclusionary rule doesn’t apply. That is, the police can still use any incriminating evidence they may find after entering against the suspect at trial. The court had been watering down the knock-and-announce requirement for decades. This was a death blow. The ruling meant that even when police violate the already watered-down rule, there will be no real consequences.
Writing for the majority, Antonin Scalia argued that while violating knock-and-announce was a violation of the Fourth Amendment, the exclusionary rule was an inappropriately severe sanction on police (and on society). Instead, Scalia pointed to other possible deterrents. One of them was a possible lawsuit against police officers. This was already a specious argument. Most people on the receiving end of these raids won’t be able to find a lawyer to represent them. Even if the police found no contraband, the damages one might collect after a verdict against the cops for entering without knocking would typically be too little to attract an attorney’s attention. And that’s just the completely innocent victims. If the police find even a small quantity of drugs, no one is going to take your case.
But here we have a case where the police failure to knock and announce almost certainly led to the death of a guy who at worst was a low-level pot offender. As Harris writes in her dissent, this “precise sequence of events — a surprised and defensive reaction by a resident, to which the police respond with force — is exactly what the knock-and-announce rule was designed to prevent.”
Moreover, if Scalia was right in Hudson — if lawsuits can serve as a deterrent to knock-and-announce violations — it’s hard to think of a better case to support his point than this one. Even here, the amount of the award is relatively small, and it would have been paid by the taxpayers of Cambridge, not the individual officers. Which is to say that even with this pretty ideal case, the deterrent effect would have been slight. And yet even here, a federal appeals court has refused to impose any sort of sanction against the officers, even after acknowledging that the officers did indeed commit a Fourth Amendment violation, and even after acknowledging that they subsequently lied about it. And the court refused to impose a sanction because, according to the court, no reasonable person could possibly have been confused about the identity of the armed intruders, even though said intruders violated the requirement that exists for the very purpose of assuring there is no such confusion.
In short, the courts will not question the use of military-style tactics to serve low-level drug warrants. The courts will give the raiding officers wide latitude to make mistakes and errors in judgment while engaging in those tactics, even when such errors result in the loss of life, and even though the officers themselves created the volatility and uncertainty themselves.. The courts will also offer no such latitude and margin of error to the people these tactics are being used against. The government actors get understanding and discretion; the non-government actors must behave perfectly.
Even when it’s undisputed that the police knowingly violated a suspect’s rights, the courts will be hesitant to impose any sort of sanction. And when exactly what happened while the volatile tactics were being executed is in dispute, the courts will defer to the police, even in cases where the court expressly concedes that the police have already been caught lying.
Given all of that, I think it’s safe to say that when it comes to serving search warrants for drug crimes, there is no longer a Castle Doctrine, there is no longer a knock-and-announce requirement. There’s barely still a Fourth Amendment at all.
(Thanks to Terry Roberts and the blog police4aqi for the tip.)