Collateral Damage of the War at Home (Part II of II)

Click here to read Part I

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
– Amendment IV of the U.S. Constitution

Probable Cause: An Increasingly Low Standard of Proof
What constitutes probable cause in obtaining a search warrant worthy of a paramilitary-style raid on your home? Shockingly, the probable cause standard is not a difficult standard to meet, particularly when the goal is to score points in the war on drugs. According to Radley Balko’s policy paper Overkill: The Rise of Paramilitary Police Raids, most warrants were issued based on the word of a single informant. Informants are often of questionable credibility such as ex-cons, rival drug dealers, and others who plea bargained to reduce their sentences or are compensated in other ways.

But surely we can count on judges to do their due diligence to ensure that the fourth amendment is respected; that there is adequate probable cause…right? Here is one example: out of 163 no-knock warrant applications filed in Denver over a 12 month period only five were denied (Balko, p. 24). Unfortunately, in most cases the judge’s signature is little more than a rubber stamp. Many judges who sign these warrants admit that they believe that the police sometimes lie in order to receive a search warrant. With this low standard of care, the fourth amendment has become all but useless in protecting citizens from invasion by the state.

What About Posse Comitatus?
The principle of Posse Comitatus simply means that the military cannot be used as a policing force on the citizenry except for of civil wars, insurrections, or a declaration of martial law (see this article for legal precedents). The very security of the country must be at risk before the military can be used; a nickel bag of Maui Wowie in someone’s home hardly qualifies as a threat to national security.

The founding fathers were very aware of the dangers of allowing the state to use its military as a policing force. In the case of these paramilitary police raids, sure the National Guard is not called in against American citizens, however; military tactics and weaponry are increasingly being used to serve search warrants even for misdemeanor drug possession. The total of all SWAT deployments increased form 3,000 in the early 1980’s to 40,000 in 2001 (Balko, p. 11).

The military and the police are supposed to have very different missions. The military’s job is to protect us from foreign enemies; this often requires (to borrow a line from Rush Limbaugh) killing people and breaking things.

Your local police department’s mission is to serve and protect the community from violent criminals. Lethal force is supposed to only be used when no other options are available to protect the life of citizens.

Unfortunately, it seems that these very two distinctly different missions have been confused. Law enforcement is expected to act as the military as if at war against citizens while the military fighting in Iraq and Afghanistan is expected to act as local police when confronting a dangerous foreign enemy!

Recommendations
At the conclusion of Overkill, Balko offers some recommendations (short of ending the war on drugs which he also advocates) to lessen the likelihood of botched police raids (p. 40-42). For the federal government he recommends ending Pentagon giveaways (surplus military equipment given to local police departments), set a good example, let federalism rule (meaning the local policing standards of the community should also apply to federal officials), and recommit to posse comitatus.

For state and local governments, Balko recommends returning SWAT policing to its original function (rare emergency situations), rescinding asset forfeiture policies (an abhorrent practice currently in place which allows police departments to keep valuables which they seize), and passing laws protecting the right of home defense (homeowner no longer responsible if he or she shoots a police officer who illegally enters his or her home).

After these specific recommendations to federal, state, and local governments, Balko made a few more recommendations for all governments: strict liability (police would be responsible for any mistakes and would be required to pay damages due to mistakes), tighten search warrant standards (the word of a single informant is no longer sufficient), more transparency (detailed documentation of each raid including video of the event), civilian review boards (citizen investigative body with full subpoena authority of even judges and prosecutors), no intimidation (no threats of criminal charges against innocent victims of raids if he or she wants to file a civil rights lawsuit), and more accountability (the person or persons who makes the mistake whether police chief, judge, or enforcement officer is subject to discipline including firing and civil and/or criminal charges).

Of these recommendations, I believe transparency and accountability are the most important. As it is, there is virtually no accountability for judges who issue warrants which turn out to be wrong. Our public officials must be put on notice that the public is watching and that they will be held accountable.

There is one recommendation I would like to strengthen – the right of home defense. Balko’s recommendation is that homeowners should not be held responsible for shooting law enforcement officers who illegally enter a home. This leaves too much open to interpretation. What happens if the police legally obtain a search warrant but still enter the wrong house and the homeowner shoots a police officer?

I think a better recommendation would be raising the standard of proof that a home owner knowingly shot a police officer as opposed to some other intruder. In the case of Cory Maye, (part 1, part 2) Maye shot a raiding police officer thinking someone was breaking in to harm his life or property. The police had a legal (although dubious) warrant to search his home.

This standard of proof necessarily has to be a very high standard to meet. Balko points out a few cases where homes were raided by people posing as police officers; as many as 1,000 such cases happen every year in New York City (p. 20). As an upstanding citizen with no reason to believe your home is being raided by legitimate police officers, what is a homeowner to do? Believe that the men are who they say they are and risk being a victim or assume they are not police officers and defend your home?

There needs to be some way for a citizen to know they are dealing with police. How that would be done, I have no idea. Police should realize that when entering someone’s home late at night, the homeowner is at a disadvantage and should enter the home knowing full well that they are doing so at their own risk (occupational hazard).

To End Needless ‘Collateral Damage’ We Must Stop Calling it a ‘War’
Collateral damage becomes an unattractive but acceptable euphemism whenever we are involved in a war in which we cannot avoid, such as the war on Islamofascism. The so-called war on drugs is a war which can and should be avoided. First of all, the war is not against drugs but against citizens who decide for themselves to use or sell drugs. Selling or using drugs in or of itself is not a violent act which requires violent force. Violent force should only be used when one citizen is endangering the life, liberty, or property of a non-consenting other citizen. Even when force is required it should only be proportional to the threat against a non-consenting other citizen’s life, liberty, or property.

The war on drugs is not worth one more terrified family, one more wrongful imprisonment, or one more innocent life. So much of this misery could be avoided altogether if we as citizens and policy makers realized the human cost of the war on drugs and realized it was time to bring it to an end. So you don’t like drugs? Good, I don’t either! However deadly drugs are, they are nowhere near as dangerous as government actions to prevent their use. Whenever citizens can be regarded as collateral damage it is time to look and see if the cost of life is worth the price. From my perspective, we have already paid too heavy of a price. I tend to believe at least some 292 families would agree.