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Opinion writer

Another day, another regrettable decision from a federal court. This one comes from a panel of judges from the U.S. Court of Appeals for the 5th Circuit granting summary judgment to the police officers who shot and killed Marcus Cass, a resident of Abilene, Tex.

Cass and Charles Camp were owners of the Abilene Gold Exchange, a business that bought jewelry and other precious gems and metals and paid the owners in cash. Like pawn shops, these are businesses where thieves often try to unload stolen merchandise, but the opinion itself points out that the two men had cooperated with police investigations in the past. Neither man had much of a criminal past. The only charge between them was a 30-year-old felony conviction against Camp for possession of marijuana.

The trouble started in early 2012, when the Abilene Police Department began pushing for a city ordinance mandating that businesses like Cass and Camp’s hold all purchases of precious metals for 12 days before reselling, thus giving police more time to track down stolen property. At a city council meeting in December 2012, Cass testified against the proposed law, arguing that given the volatility of precious metal markets, a 12-day wait would be harmful to his business. He also claimed that Abilene police had previously told him that the still-proposed law was already in effect, which he found disturbing. Abilene law enforcement officers would later testify that they found Cass’s testimony at the meeting to be “anti-police.”

Five days later, a detective newly assigned to APD’s property crimes unit named Chris Smith called Cass about a recent theft. Smith later said that Cass became combative with him on the phone and hung up. Smith testified that he had discussed the call with other officers, then checked an online site where businesses like the one Cass and Camp operated were supposed to report recent purchases, so police could check to see if they matched descriptions given by recent victims of theft or robbery. Smith noticed that the businesses hadn’t uploaded any purchases in three weeks. He testified that the businesses hadn’t uploaded some of the prior purchases listed on the site within the required 48 hour window. Based on that, he began investigating the business for fencing stolen property, and obtained a warrant to search the business.

So far, so good. The problem comes with how they decided to execute the search warrant. Smith, who again was new to the unit, wanted to simply walk in to the business, show the search warrant, and execute the search. Given that Cass and Camp had cooperated with police in the past and had no violent criminal histories, that seems like a reasonable and responsible way to serve the warrant. But after consulting with the cops who were still angry about Cass’s testimony at the city council hearing, the plan changed. The other officers told Smith that Cass and Camp were “anti-police” and noted that the two had a number of guns at the store (which isn’t uncommon in that sort of business). They also cited Camp’s three-decades-old felony conviction for pot. So instead of walking in, in uniform, and giving the two men the opportunity to peacefully comply with a search warrant, “a team in body armor led by a uniformed officer would enter the business quickly with guns drawn to secure the premises and execute the warrant” — for “the safety of the officers.”

Charles Camp was at the front of the store. The first officer who entered the store was wearing a uniform that clearly indicated he was a police officer. Camp immediately raised his hands and cooperated. Smith, who followed the first officer in, was wearing street clothes, sunglasses, and a black bulletproof vest. As the opinion points out, the only indication that he was a police officer was a badge affixed to the right side of his belt. (The other officers who entered were wearing bulletproof vests with “POLICE” in big letters on the front.) Smith continued to the back of the business, to the office where Cass was working. Here’s how the opinion describes the fatal encounter:

As Smith approached Cass’s office, Cass was walking toward the doorway from inside the back room. It appears from the video recording that the officers and Cass could not see each other, but that Cass heard someone enter and was walking to the doorway to greet the person. As Smith walked forward along the wall, his drawn gun, which was extended in front of him, crossed the open doorway and was the first thing Cass saw. At that point, Cass began to draw his own gun, which was holstered at his right hip. Smith continued walking forward, and as he came to the doorway, he saw Cass drawing his gun and raising it toward Smith. Because Smith was not wearing a vest marked “POLICE” and his badge was on his right side opposite Cass, nothing Cass could see indicated that Smith was a police officer; Cass saw only a gunman dressed in black body armor and dark sunglasses. Smith stepped to the right and fired twice, causing Cass to drop his gun and slump to the floor. The entire sequence occurred rapidly; Cass was shot about seven seconds after Pipes first set foot in the building.

The surveillance video had no audio. Predictably, the police officers all claim they loudly announced themselves. But Camp said he only heard was “get your hands up.” There was one witness to the raid who wasn’t either a suspect or a law enforcement officer. From the opinion:

Bill Adams, a bystander, testified in his declaration that he was standing “about 20 to 25 feet from the front door of [Abilene Gold Exchange]” when the raid occurred, and that “I was expecting to hear [the officers] yell ‘police’ [or] ‘search warrant,’ but did not hear them yell anything. A few seconds later, I heard two gunshots.”

The search didn’t yield much. Camp was later charged with failing to pay $150 in state taxes for purchases he had made over the Internet. He was also charged with unlawful possession of a firearm, given his 30-year-old felony. Cass was allowed to own the weapons in the store. But he was dead.

So to ensure “officer safety,” these cops employed tactics that have a very low margin for error, and that unless executed flawlessly would risk making them appear to their suspects as if they were armed robbers. They used these tactics knowing full well that 1) the suspects operated the sort of business that is frequently targeted by armed robbers, 2) because of this, the suspects were well-armed and likely to defend themselves should they perceive themselves or their business to be under attack by criminals, and 3) the suspects had cooperated with police investigations in the past. They chose this much more volatile and violent method of serving their search warrant not because Cass and Camp had a history of violence, had made explicit threats against law enforcement, or demonstrated some other threatening behavior, but because some cops perceived their opposition to a law enforcement-backed city ordinance as “anti-police,” and because Cass had allegedly gotten testy with a detective (the same detective who would later kill him) over the phone. Cass’s estate also alleges that after the raid, Abilene police officers “harassed and intimidated parties and witnesses to the shooting.”

Seems pretty damning. And yet when Cass’s estate sued the city of Abilene, its chief of police and Officer Smith, the U.S District Court for the Northern District of Texas dismissed every complaint by Cass’s estate. The court found that while the method of serving the search warrant wasn’t the “wisest plan” it was at worst “negligent conduct,” and therefore not a violation of Cass’s constitutional rights. The appeals court panel agreed.

Cass’s estate first argued that the decision to serve the warrant in a tactical manner was retaliation for his comments at the city council meeting, and thus a violation of the First Amendment. The court found that because there was probable cause for the warrant, Det. Smith couldn’t be faulted for procuring it. It then found that because the decision to rush the place with guns drawn was made not by Smith but by Lt. Gary Bone, an officer above Smith, Smith couldn’t be liable for the method of entry either.

Cass’s estate also argued that Smith’s shooting of Cass violated the latter’s Fourth Amendment rights. But because Cass drew his gun, the court found that Smith was within his rights to shoot Cass in self defense. In the end, Smith is completely shielded from any liability.

Two of the officers who were at the planning of the raid were also present at the city council meeting. One was the main supporter of the new law that Cass and Camp opposed. But those officers didn’t make the final call to serve the warrant they way it was served. That decision was made by Lt. Bone. For reasons that aren’t clear, Cass’s estate didn’t include Bone among the parties it chose to sue. But it seems unlikely that they would have been successful if they had. That’s because the doctrine of qualified immunity enjoyed by police officers makes it exceedingly difficult to even get these cases in front of a jury.

Here’s why: Up until this point the court has yet to even find that any of Cass’s rights were violated, even assuming the facts of the case in a light most favorable to his estate. The court finally does allow that given that the men had no violent history, no recent criminal record, and had made no explicit threats, “a reasonable juror could find that Smith’s use of force violated Cass’s Fourth Amendment rights and unnecessarily created a dangerous situation that made Cass’s death likely.” But establishing a violation of constitutional rights is only the first hurdle a plaintiff must meet to get past qualified immunity. The victim then must establish that the rights the officer violated were “clearly established” at the time of the violation. It’s a standard that actually provides an incentive for police departments to keep officers in the dark about recent court decisions that pertain to policing and constitutional rights. And here, the court finds that Cass’s estate once again comes up short, apparently due to insufficient supporting arguments from the estate’s attorneys.

Appellants’ entire argument on this second prong of the qualified immunity test is that “it is clearly established in the law that citizens are protected against unjustified, excessive police force.” This general statement is insufficient to meet Appellants’ burden. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011) (“We have repeatedly told courts . . . not to define clearly established law at a high level of generality. The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.”)

To be fair to the attorneys, it’s far from clear that such rights are clearly established. Over the years, the federal courts have been extremely hesitant to second-guess the amount of force police use when they conduct searches. There have been a few exceptions, but for the most part the courts have simply deferred to vague statements about “officer safety,” and made little attempt to analyze those claims — regardless of whether the more aggressive tactics really do improve officer safety, or, even assuming that’s true, whether the benefits to police are worth the punishment, terror, and peril imposed on the suspects and bystanders. In other words, even if Cass’s estate had made a more developed argument here, it’s unlikely that they would have prevailed. For this court to even concede that a reasonable juror could have found this raid to be a constitutional violation is somewhat surprising. The fact that it is surprising probably means that this court wouldn’t have found that there’s an established right to not be gunned down in your office by raiding cops serving a warrant for a relatively low-level offense. (I know. When you put it that way it sounds ridiculous, doesn’t it?)

Of course, even if this court had allowed this case to go to trial, Cass’s estate would then have to convince a jury to find these officers liable. That too is far from a guarantee.

One final, depressing point. The court basically concedes that this raid was inept, overly aggressive, and an all-around bad idea. Then, in a footnote, there’s this:

We are troubled by the unwillingness of the City of Abilene’s counsel to concede at oral argument even that there was anything unwise about the raid, which suggests that nothing will be done to prevent a repetition of this tragedy the next time APD needs to inspect the records of a business whose owners are known to be armed.

Well at least they’re troubled! If you’ve been reading this blog for any reasonable length of time, you know by now that these tactics are being used with increasing frequency, and for increasingly petty crimes. They’re used to enforce laws against underage drinking, to serve administrative warrants, and to enforce regulatory crimes. Even if no one is killed or injured, this ought to be a terrifying trend. And yet when someone does diethere’s no accountability.

In the end, I’ll just say that just as with the infamous “SWAT raid over tea leaves” raid, a) on the law, this opinion isn’t all that objectionable, b) that said, a different panel could probably have written an opinion that allowed the case to go to trial that also wouldn’t have been objectionable under current law, and c) it’s the law that’s the problem.

The lesson here is that it’s a mistake to think that the courts will rein in aggressive policing. I wish they would do more. But it just isn’t going to happen.

The good news is that even when some of us think they’re wrong, the federal courts only set the ceiling on what police conduct is permitted under the Constitution. As a policy matter, the residents of Abilene could decide tomorrow that they no longer want police conducting these types of raids to serve search warrants. They could demand that the city council pass a bill allowing such tactics only when police believe a violent crime has been committed, or is about to be committed. The residents of any other city in America could do this too.

The bad news is that most people don’t care about this stuff until it happens to them or someone they know. So that’s unlikely to happen, too.