Later On

A blog written for those whose interests more or less match mine.

Absurd Fourth Circuit ruling embodies everything that’s wrong with drug raids

with 2 comments

Radley Balko points out in the Washington Post an example of how courts are moving away from decisions based on common sense, the general welfare, and the Constitution and toward decisions to justify a police state. It’s a long column, and it deserves reading and wide dissemination.

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 that there was drug activity going on in the duplex at 408 High St. (Yes, that’s the real 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 probable cause 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 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. 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 will be promptly tossed.

But it’s worth considering the absurdity of that position. 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 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. . .

Continue reading.

The changing view is that your home is no longer your castle, it’s the state’s castle, and the state can enter as it chooses, including battering down the door and with weapons drawn—and, too often, with weapons fired. The state is taking over, whether we like it or not, and takeover is being aided and abetted by our legislators, courts, and Executive branch.

Please read the entire article. It shows how far down the road we have gone. For example, later in the article:

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.

I commented on the article in the Washington Post:

This is a giant step on the path to a police state, and the push toward becoming a police state is coming not only from the courts but also from legislators and the executive branch (which includes law-enforcement responsibilities). I am saddened to see the US move so strongly in this direction, but the signs are everywhere, and we do not have legislators to oppose the move in that direction. Some do, but they are outnumbered (dare I say outgunned?) and underfunded. The corporate state likes a police state, provided corporations control the police: the corporations can thus keep order and slap down dissenters (cf. union busting in the US from the 19th century onwards: it was the police and the national guard who were called in to attack union members to break up strikes). What we see is the process of the US becoming a fascist state.

Written by Leisureguy

27 March 2015 at 11:47 am

2 Responses

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  1. Reblogged this on Brian By Experience.


    Brian Dead Rift Webb

    27 March 2015 at 12:13 pm

  2. “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.”

    I’ll fix that:

    ” The point here, to be clear, is not to take issue with the Officers’ decision to use Gestapo tactics in the streets of America.”

    And then these fascist control freak hypocrites go home and legally do a drug that’s far more dangerous than cannabis ever will be. Get a grip, alcohol supremacist bigots.



    27 March 2015 at 5:52 pm

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