According to the Burleys’ accounts, the officers who raided their home were clad in black. Some wore balaclava masks or face shields that hid all but their eyes. Others pulled their hats down low to shield their identities. They had also obscured their names and badge numbers. Once the Burleys’ house had been thoroughly searched, both women asked the officers for their names. After holding an impromptu meeting, the officers told the Burleys that they wouldn’t divulge any information that could identify them individually. Instead, they told the women that they had just been raided by “Team 11.” The women weren’t given a search warrant.
“Team 11” didn’t actually exist. It was part of a Drug Enforcement Administration squad called “Team 6.” But for the Eight Mile operation, the team was partially split up and reorganized with members of state and local police agencies, then renamed just for that particular operation.
The whole affair was coordinated by the Wayne County Sheriff’s Office. When the Burleys asked the office for the names of the officers who raided their home, the office said it had no record of that raid, directing them instead to the DEA. The DEA told the Burleys that the agency was transitioning to a new administration and couldn’t respond, but that it would eventually get back to them. It never did. The Burleys finally filed a lawsuit in state court, which forced the Wayne County Sheriff’s Department to give them the records of the raid that the office previously said didn’t exist. Included in those records was a DEA report with the names of the agents who participated in the raid.
For their lawsuit, the Burleys sent the named agents questionnaires. The agents filled them out, denying that they ever violated the women’s civil rights. But notably, none of the agents denied that they had participated in the raid.
That all changed during depositions for the lawsuit. In what came as a complete surprise to the Burleys’ attorneys, every agent named in the report denied participating in the raid. Instead, they claimed that “Team 11” had actually been split into two on that particular day. One team raided the Burleys, while the other raided a home nearby. The agents claimed that the DEA report must have included the names of the wrong half of “Team 11” by mistake. They were all in the other house.
So the Burleys’ attorneys did what you’d expect them to do: They deposed the other half of the team. You probably know where this is going. All of those agents also claimed to have been in the other house. No one denies that the Burleys were raided. No one denies that one half of “Team 11” conducted that raid. But both halves of “Team 11” insist it was the other half that was in in the Burleys’ home. Deputies from the Wayne County Sheriff’s Department were also on the raid, but apparently stood outside the home while the DEA agents did the dirty work. Yet none of the deputies on the Burley raid could remember which DEA agents were with them.
“It’s one of the most bizarre things I’ve ever seen,” Burley attorney Stanley Okoli told me a few years ago. “I asked, ‘which amongst you went to one address?’ and they said they couldn’t remember. So I asked, ‘which amongst you went to the other address?’ and they said they couldn’t remember.”
To file a civil rights lawsuit against law enforcement officers, you need to know the names of the actual officers. The courts won’t allow you to file a civil rights claim against a police or government agency in general. By the time the DEA agents sprang their surprise on the Burleys, the statute of limitations on their lawsuit had nearly run out.
The Burleys filed their lawsuit anyway, hoping they could persuade a court to compel the DEA to name the officers who participated in the raid. It just got worse from there:
In June 2012, U.S. District Court Judge Bernard Friedman first dismissed the Burleys’ claims against Wayne County, then preempted a jury verdict in the trial against the federal agents. He ruled that, given the evidence, no reasonable jury could find in the plaintiffs’ favor, and in addition ordered the Burleys to pay the DEA agents $5,000 to compensate them for court costs.
“These women are destitute,” Okoli told HuffPost. “That was completely discretionary. He didn’t have to do that.” Because the women couldn’t pay, the government moved to garnish their Social Security disability checks to cover the fine.
The following year, a panel from the U.S. Court of Appeals for the Sixth Circuit upheld the dismissal of the sheriff’s deputies from the lawsuit, but reinstated the claims against the federal agents and vacated the order for the Burleys to pay court costs. The panel found that “the agents’ intent to conceal contributed to the plaintiffs’ impaired ability to identify them.”
The problem: The appeals court did not require the DEA to produce a definite list of names of the agents who participated in the raid. The Burleys’ lawsuit was reinstated, but they were also right back where they started.
Okoli welcomes the Sixth Circuit’s decision. But he said that, in addition to having to go before Friedman — who appeared hostile to his clients’ case — again, the Burleys are at even more of a disadvantage than they were in the first trial. The agents and their attorneys are now aware of inconsistencies the first trial exposed in their stories, and can attempt to explain them away. “We lost that element of surprise,” Okoli said.
Back before Judge Friedman, the Burleys argued the second time around that the burden of producing the real officers’ identity should fall on the officers named in the report, not the Burleys. They cited a case in which the U.S. Court of Appeals for the Ninth Circuit had taken that approach in ruling on an unlawful arrest lawsuit. In that case, police in San Francisco arrested a woman at a protest but refused to give their names or badge numbers. In her lawsuit, she named all the officers on the arrest report (in San Francisco, police policy is apparently to name all the officers on the scene in an arrest report). Because neither the officers nor the city would name the officers involved in the arrest, the court shifted the burden to the city to prove that the arrest was lawful.
“This minimal burden shifting forces the police department, which is in the better position to gather information about the arrest, to come forward with some evidence of probable cause. . . . By shifting the burden of production to the defendants, we prevent this exact scenario where police officers can hide behind a shield of anonymity and force plaintiffs to produce evidence that they cannot possibly acquire.”
But the U.S. Court of Appeals for the Ninth Circuit, of course, has no authority over a district court in the Sixth Circuit. Judge Friedman rejected the burden-shifting argument. So the Burleys had to argue that the police officers named in their lawsuit violated their rights based only on a DEA report that the officers themselves claim was in error. Because the women themselves never saw faces, name tags or badge numbers, it was a hopeless fight. Friedman did at least let this trial go to the jury, but the jury acquitted, finding that the Burleys hadn’t proved that the agents named in their lawsuit were the agents who conducted the raid.
The Burleys appealed again. Last week — nearly nine years after the raid — a panel of Sixth Circuit appellate judges shot them down. Like Friedman, the panel rejected the burden-shifting argument. Here was their reasoning:
Under plaintiffs’ proposal, a law officer who raises an “I wasn’t there defense” can only avoid constitutional liability by mustering evidence of who was there instead, and by implication, who was responsible for the alleged excessive force. In other words, once a plaintiff has put forth some evidence of an officer being present at a raid in which a constitutional violation has allegedly occurred, that officer is presumed to be liable if he claims he was not there, unless he proves who was and who did it.
That’s a fair point. But the Burleys didn’t create this problem; the DEA did. In a criminal context, it makes sense to put the burden of proof on the prosecution. But this is a civil case, and the defendant is basically the government. These women were wrongly raided by federal cops. The women’s inability to name the federal cops involved is due to those agents concealing their identities after the raid, then what was either gross incompetence or — more likely — corruption and cover-up by those federal cops and/or the agency that employs them. The law requires the Burleys to identify the cops by name. The government refuses to do so. The panel is right that this presents a legal conundrum. Someone was going to get a raw deal in this ruling. But why should it be the Burleys?
It’s worth noting that there are some fictions at work here, too. The Burleys are required to identify the police officers individually, but it’s almost certain that if they were identified and found to have violated the Burleys’ constitutional rights, they’d be indemnified by the DEA. Any award would be paid by taxpayers. Treating the officers as individuals requires the plaintiff to find their identities and assign and prove each violation. You can’t simply sue the DEA or your local police agency after a botched raid and say, “My rights were violated by your officers.” It’s not an insignificant task, given that these raids are often done at night and are designed to confuse and disorient their targets. Yet in the rare event that a plaintiff wins, the officers are treated not as individuals, but as agents of the agency that employs them. (This does make it easier for plaintiffs to collect. But the dichotomy is interesting.)
The Sixth Circuit panel did express at least a little sympathy for the Burleys:
We do not condone the behavior of those individuals who perpetrated the alleged excessive force. We are cognizant of the fact that at this juncture our decision leaves plaintiffs without a remedy because all other defendants (state, county, and local) have been dismissed. However, at the second trial, plaintiffs had the opportunity to present evidence as to why they believed these federal defendants participated in the raid and committed excessive force. The jury simply did not credit their evidence when they found to the contrary.
But the reason the Burleys proceeded with those agents is because those were the only names they were given. Not only was time running out for them to find the real names, but there’s also no indication that the DEA would ever have produced them, no matter how long the statute of limitations. (This, of course, assumes that the agents named in the lawsuits were telling the truth about not participating in the raid — not at all a given.)
These kinds of raids are inherently violent, dangerous and volatile. The drug war also operates on dirty information — tips collected from informants, anonymous sources, even rival drug dealers. The rewards for drug cops who bust major drug operations can be significant — prestige, career advancement, seizure of money and property that goes back to the police department. Massive undertakings like Operation Eight Mile are particularly fraught with the potential for mistakes. When you’re conducting hundreds of raids at once, there’s less time to do the necessary follow-up, corroborating investigation and double-checking to make sure there’s probable cause for each raid and that each raid is carried out at the correct address.
It’s critical that there be some pushback to ensure quality control — to give police an incentive to go out of their way to make sure innocents aren’t subjected to these tactics. (I’d argue that these tactics are inappropriate for drug searches in general, but that’s another matter.) The Exclusionary Rule is a (somewhat weak) incentive to make sure that there’s real probable cause and that searches are conducted legally. But that rule doesn’t protect innocent people. The only policy protecting them is a civil rights lawsuit. You could make a good argument that this Sixth Circuit panel just gave police a pretty good template to avoid these sorts of lawsuits, at least in raids involving multiple police agencies: Conceal your identity from everyone, then create a bureaucratic morass that makes it nearly impossible for any potential litigants to figure out who you are.
The beef here isn’t only with the Sixth Circuit panel. (As if often the case, from my reading, the ruling was probably correct under the law, although one can envision a legally justifiable ruling for the Burleys as well.) What about the DEA? It’s been nine years now. Why hasn’t the DEA made an effort to identify the agents who raided the Burleys? Why is the agency ducking accountability and denying the Burleys a real day in court? Is the DEA’s official position here that the Burleys are lying about ever being raided? That’s certainly the implication — if none of the “Team 11” agents admit to participating in the raid, then they’re basically claiming that the raid never happened. What about U.S. Attorney Barbara McQuade? Is she comfortable allowing the DEA to operate in her district this way?
As for the rest of us, are we really ready to just be okay with the idea that masked, heavily armed agents of the government can break down a door, terrify two innocent women, leave without presenting a warrant, their names, their badge numbers or revealing their faces … and get away with it?
The same year the Burleys were raided, the conservative pundit Michael Ledeen put up a short post on the Pajamas Media site that has always stuck with me. (The post is no longer up, but I excerpted it at the time.) A news agency had just released a series of photos about a drug bust in Tehran. Ledeen, who was agitating for war with Iran at the time, wrote:
Terrifying pictures, to be sure. For me, the most revealing thing about them is that the police feel obliged to wear masks while conducting a drug bust in the capital. tells you something about the relationship between the people and the state.