Over at Volokh, Orin Kerr responds to one of my posts that fellow Volokh blogger Jonathan Adler put up earlier.

First, it isn’t an accurate expression of the law, either from the standpoint of self-defense law or the standpoint of civil actions against the police. Second, as best I can tell, we really don’t know the facts of the Johnston case to which the post refers. A lot of bloggers just seem to know, but as far as I can tell we have a lot of speculation without a solid basis to know what happened.

But it is. It’s very, very difficult to sue police officers. Immunity defenses knock out most 1983 suits before they get to discovery. Talk to any civil rights attorney. I’ve studied a lot of these raids. Many times entirely innocent victims of wrong door raids can’t even get paid for the damage done to their home, much less for the terror and fright they’ve faced (see the rash of wrong door raids in New York City in the 1990s — Manhattan Borough President Virginia Fields’ report details several in which wrong door raid victims couldn’t even get police to pay for their doors to be repaired). Punitive damages are generally out of the question. And police are almost never held criminally accountable.

People who mistake police for intruders and fire at them in self-defense, on the other hand, can generally expect criminal charges to be filed against them. Orin has worked on the Cory Maye case. He ought to know that. In fact, I know of only a couple of cases where charges haven’t followed under this sencario — one in Oklahoma (which has a “make my day” law), and one in Maryland. But even in the Maryland case, the guy spent six weeks in jail before the charges against him were dismissed.

As for the assumptions I’m making about the Atlanta case, I’d still maintain that I’m not presuming all that much. The only real assumption I’m making before all the fact are in is that a 90+ year-old woman probably wasn’t involved in the drug trade. And if that’s the case, then she didn’t deserve to have her home raided. And she shouldn’t be dead. Which means this was the wrong way to go about policing this case. I could be wrong (though police have told AJC reporters off the record that they don’t suspect her of drug activity). If it comes out that Kathryn Johnston was indeed a nonagenarian drug pusher, I’ll be the first to admit my mistake and apologize.

If she was innocent of drug activity, I don’t understand how you can look at her death and conclude anything other than that it is, simply, an unacceptable outcome. A consensual drug crime investigation should not end in the death of an innocent woman. If Orin or other defenders of these tactics are prepared to debate that, then we’re in a lot more trouble than I thought. Either there were errors in the investigation and procedure, or the policy itself is deeply flawed — or both.

The second part of Orin’s critique is especially disappointing:

Third, Radley’s “pretty simple”"solution seems quite troubling to me. Under his proposed solution — “stop invading people’s homes for nonviolent offenses” — a person could commit any white collar fraud, embezzle money from the elderly, bribe Congressmen, or engage in a global child pornography trading ring knowing that the police won’t invade their home to collect evidence against them. I assume these crimes are all nonviolent offenses, and if I understand Radley’s idea, homes wouldn’t be searched for evidence of such crimes being committed. That doesn’t seem like a very good solution to me.

This is a pretty blatant misreading of my work on this issue. It’s also a puzzling reading of that particular post. You almost have to want to misread it to come to the conclusion Kerr did.

Of course I think search warrants are appropriate in white collar crime. I used the word “invading” for a reason. “Invading” carries a paramilitary connotation. The post was referring specifically to paramilitary style “dynamic entry” service of warrants. I don’t think police should use these tactics in anything other than emergency situations where the suspect presents an immediate threat to others — so hostage takings, terror attacks, fugitives, etc.

To have misread my post to the extent that he did, I can only guess that Kerr has never read anything I’ve written on this issue. Which is fine. I don’t expect everyone to read everything I write. But I do expect someone to have at least passing familiarity with my work before attributing such a bizarre position to me.

Kerr updated the post with a bit of a clarification after his commenters called him to task. But he still leaves room for the possibility that I would actually advocate abolishing search warrants for nonviolent crime. So let me state for the record: I do not hold that position. I know I sent Kerr a copy of my paper. If he’s going to post on my position on the use of paramilitary police tactics again, I’d encourage him to take a couple of hours to read it first.

By the way, Kerr might also want to take note — as I’ve been tracking on this site, SWAT teams are increasingly being used for white collar crimes too. Just a few months ago, a SWAT team deployed flash grenades and broke into the home of a man suspected of mortgage fraud. A couple of years ago, two middle-aged women were subjected to the SWAT treatment for suspicion of defrauding the Small Business Administration (the two were later exonerated — the fraud turned out to be a clerical error). And of course, we shouldn’t forget about Sal Culosi, the Fairfax optometrist shot and killed by a SWAT team sent to his home after an undercover detective caught him gambling on football games with a few friends.

This entry was posted on Saturday, November 25th, 2006 at 6:57 pm by Radley Balko and is filed under Police Militarization. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.