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It’s 4:30 AM…
Do You Know Who’s Breaking Into Your House?
No one disputes that police officers have an important and difficult job . Moreover no one — at least no one sane — disputes that police work will sometimes be ugly and distasteful, or that officers will occasionally make well-intended mistakes, sometimes with terrible consequences. When such things happen, it’s wise and just to give police the benefit of the doubt, both morally and legally, through such principles as qualified immunity.
This case, however, seems to show how all that good will can be abused. Nearly 10 years ago, police in Cambridge, MD received “an anonymous tip of drug activity” at the residence of Andrew Cornish, who lived in a second-story of a duplex. Inspection of the residence’s trash confirmed trace amounts of marijuana and drug paraphernalia, which officers used to obtain a warrant to search the residence. At 4:30 AM on May 6, 2005, they carried out that search. While the police have consistently maintained that they knocked and waited as required, the residents of the downstairs apartment claim otherwise. Within 60 seconds of their entry, Cornish approached one of the officers flourishing a large, sheathed knife and was shot dead. An inconsequential amount of drugs was subsequently found in the apartment.
Cornish’s father sued on grounds of the illegal entry and excessive use of force. Both the district court (in its jury trial) and now the United States Court of Appeals, Fourth Circuit have found against the police officers on the matter of their entry: that is, that the police did not meet the legal standards for alerting Cornish of their entry. However, both courts ruled in favor of the police on the use of force on the grounds that the “superseding cause” of Cornish’s death was his attack on the officers, not their unlawful entry. This was based on the conclusion that Cornish knew that the police were police when he attacked them, a matter the jury and judges inferred from the evidence (Cornish being unavailable to testify, on account of his being dead from two gunshots to the head). For somewhat technical reasons, the result of the appeal was to invalidate most of the damages.
Writing in her dissent from her fellow judges in the appeal, Judge Pamela Harris thinks this is nuts. Cornish was not a drug kingpin, apparently had a good relationship with local police, and had no reason to suspect a nighttime raid on his residence. She writes:
[A]t the moment he heard the commotion at his front door, Cornish simply had no reason to expect that it might be the police. Indeed, thanks to the knock-and-announce rule, he was entitled to and likely did assume the opposite: that if somebody was coming crashing into his home at 4:30 a.m. without knocking and announcing, it must be someone other than the police.
Certainly there is nothing about the facts of this case that would have deprived Cornish of the right to rest on that presumption. Cornish was not some drug kingpin who might be on notice as to the possibility of an unannounced police raid. On the contrary, Cornish enjoyed a cordial relationship with the police; one of the Officers testified that while on duty he would occasionally stop by Cornish’s building and share a Pepsi with Cornish on the front porch. And as noted above, as to Cornish, this was a case about trace amounts of marijuana found in a trash rip, which ultimately led to the seizure of a small quantity of marijuana in Cornish’s apartment — not exactly the stuff of no-knock nighttime SWAT raids.
She continues:
The point, to be clear, is not to take issue here with the Officers’ decision to execute a search warrant based on marijuana traces by way of a military-style nighttime raid. All that matters for this case is that Cornish could have had no reason to expect such a raid, and that the jury understood as much.
Harris is no doubt right not to question the tactics used in her opinion, but the rest of us are not so encumbered. While it’s easy to imagine circumstances that might justify an armed police raid in the middle of the night on a private residence, it’s hard to imagine how marijuana possession or distribution could rise to that level (I’ve been unable to locate any details of the anonymous tip). What in God’s good name was so pressing about the matter that it warranted the risks — either to Cornish and to the officers — of this kind of assault at that time of night? If it’s a matter of the potential of his destroying the evidence, is that really so terrible? And how on earth can we expect a citizen to ascertain that the people bursting into his residence are police when they do so in the middle of the night, without adequately announcing themselves, and can’t even tell if someone is brandishing a sheathed knife?
As the WaPo’s Radley Balko writes, Americans used not to stand for this sort of thing:
[I]t’s worth considering what it means for this to be settled law. 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 long and 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.
For me, the most depressing aspect of all this is that these kind of raids have become common enough that criminals are — increasingly, I gather — posing as police during home invasions to throw the victims off-guard. The idea that law-abiding Americans can reasonably assume the masked men bashing in their door in the middle of the night are actually police officers whom the court will side with is a depressing thought.
That this case lends credence to that idea is rather worse.
Like.
Part of the problem is the S.W.A.T. unit of police departments. If you have a tool, the inclination is to use it as often as possible. Thus, we S.W.A.T. squads doing all sorts of things that “regular” police officers are equally and maybe more qualified to do.
Here in Albuquerque, anytime someone decides they don’t want to be arrested and locks their door “barricade themselves in their apartment causing a danger to area residents” the S.W.A.T. team is called out. The area is evacuated and locked down. High drama ensues.
I wonder what would happen if the cops just walked away and kept watch from a distance until the “perp” came out on his own.
We had a great little scene in a tiny town in Maine about ten years ago.
A bona fide barricaded gunman had taken up a position at his apartment window above the grocery store. He had a rifle, and was threatening to shoot people (it was, as these so often are, a ramped-up “domestic”) . The State Police team arrived, evacuated Main Street, got snipers into position…and then the Lieutenant called the guy on his cell phone and talked.
Talked. Talked. When the guy’s cell-phone battery died, the Lieutenant sent an armored-up trooper to the apartment door with a fresh cell phone. More talk…more talk. Eventually, the buzz from the coffee brandy wore off, and the soothing conversation made him feel sort of mellow, so he gave himself up. The team took him into custody and drove him to the hospital for a psych eval.
A perfect—PERFECT—law enforcement operation: when it was done, no one was dead.
Sounds like a botched deal all around. Perhaps there’s more info which might provide explanations (as there so often is in these kinds of cases), but setting that aside it sounds like a botched case.
Botched by the person issuing the SWAT raid warrant. Seems like it should take more than some trace amounts of drugs to justify the extra precautions and risks involved with a SWAT raid and a night raid. Perhaps there were other factors to justify it beforehand; I don’t know.
Botched by the SWAT team. Seems like the high probability of someone naturally picking up some kind of weapon to defend themselves should be part of the training and procedures. Perhaps it is; I don’t know.
Either way, I’m not so sure this is a data point proving the oft-discussed trend of abuse.
Of all warrants and raids, how many are SWAT? How many are night time? How many of such cases are justified by the known circumstances at time the warrants were issued? How many result in death/injury? How many of those are police error?
This is the kind of info we need in order to assess the proposition.
I think those are really good questions (as previously discussed, apparently most raids carried out by SWAT officers do not actually use SWAT tactics; that’s a very important distinction). When I have a few minutes, I’m going to see if I can track down more about the warrant and the tip.
What I find so troubling about this one is that even when it’s clear that the police screwed up — and, as you say, likely whomever issued the warrant, baring information we don’t know — the police are still exonerated.*
* “Exonerated” is the wrong word; it was a lawsuit. See comments below.
I’ve been doing a lot of soul searching on my recently changed view of law enforcement and the criminal justice system. I sincerely desire more benevolent emotions towards those charged with the protection of society. Interaction with folks like Ed and Kate compel me to strive harder for such a relationship. Things like this do not help.
That aspect is a tougher one for me. Barring gross incompetence or even malicious intent, the nature of these things is dangerous all around.
It’s not like the SWAT guys are the ones initiating the need for a SWAT raid. They get the orders, suit up, and go. Whenever they’re called, the risk for all goes up. Which is why it’s so important for the warrant issuer to be have his head on straight. Barring gross incompetence or malicious intent of the officers, I’m more inclined to consider this as an unfortunate instance which might call for additional training or a review of procedures. I’m more inclined to view the warrant issuer as responsible and culpable than the officers.
Then there is exoneration. Again barring intent, criminal charges are clearly not in order because it was authorized. That, and most crimes require an element of intent. Incidental events, unfortunate as they can be sometimes, do not rise to intent in most cases. Losing their job? I tend against that too; as I say it’s a risky operation and things are bound to happen sometimes – and the officers we ask to do those things shouldn’t be punished unless there was intent or gross incompetence.
I just realized I misspoke in my comment; I should not have used the word “exonerated.”
The police, PD, and city were sued, not under criminal indictment. The $250,000 judgement Cornish’s father won (since overturned) was from the city, not the officers.
My apologies for the confusion, Ed.
That’s alright, Tom. I think my thoughts apply generally.
As far as lawsuits, as a conservative I do have a knee jerk reaction against them. Seems like the lawsuit should have been against the officers and the warrant issuer and not the city, despite the likely pointlessness of suing the officers. Just because the potential reward is close to nil doesn’t mean that we should expand the circle of reasonable culpability to be certain to ensnare a deep enough pocket to make it worthwhile.
While I’m generally pro-cop, this is the kind of thing that infuriates me about modern government (and yes, policing is part of governing). From no-knock raids, to cash seizure without a warrant or cause, to the over-abundance of military style SWAT units, I’d have to say it’s long past time police departments and DA offices were brought to heel.
I think the city was the most culpable party and should have been the focus of the suit. What was the urgency of conducting this raid at 4:30 AM from the trace amount of evidence used for the warrant? I personally have no doubt that the door was kicked in without proper notice – that is my prejudice after dealing with police interactions with my mentally ill son over the last 10 years. It’s the city’s obligation to set the parameters on this kind of government operation. The jury verdict should have been upheld.
Aside from your certainty and whether that’s a reasonable statement, lawsuits like this against the city not only contribute to increased costs and taxes for citizens, it also leads to the no tolerance environment we get where liability avoidance gets taken to silly and undesirable extremes. The city/county or whatever entity does have a safeguard(s) in place – ie the judge who issued the warrant. If the judge failed in his duty then it is he who should be sued and not the entire city.
I once attacked to young men pounding on my door at 3am. I was actually sleep walking and dreaming I was being attacked. I stopped as soon as I realized it was a dream. If they would have been armed police I would have been in big trouble if not dead.
Ed, I said my “certainty” was based on my prejudice. so I think I was qualifying it already. I agree it was good to get a warrant, but I don’t think it is unreasonable to have policies that require additional urgent circumstances or information before initiating a raid at 4:30 AM. If there is additional evidence we are not told about in this example, i.e., the informant told them that meth was being cooked and would be out of the building before dawn, then I might see the need for this action. If the total proof offered the court for issuance of a warrant was that they found a few roaches in the man’s trash can I don’t think that burden had been met, and they self-evidently did not have the common sense to wait until daytime without the city putting policies in place.
Let’s call this what it was: a home invasion. And it’s worse than anybody has said so far.
“both the trial court and the appeals court that ruled against Cornish’s father acknowledge both that the police violated the knock-and-announce rule, and that they lied about doing so.”
The police officers acted improperly, then lied about it; if it came to the court’s attention, it must have been under oath… they perjured themselves. The police department knew it and gave the officers a free pass; the Court knew it … and gave the department a free pass. A lawless police department, a lawless trial judge, and a lawless appeals court.
Except you can’t sue a judge for issuing a warrant.
Maybe not, but that doesn’t mean the culpability goes beyond that judge or that a city lawsuit is justified.
Is this hyperbole, or are you sincere?
The best definition I know of a police state is one that applies one law to the populace and another to the police.
I guess I have to wonder just what kind of police department doesn’t actually investigate potential drug activity. Instead they take the unprecedented course of simply carrying out a 4:30 AM raid, performing it illegally (in procedure), lie about it, kill an innocent citizen – and apparently no one cares.
Perhaps more than anything else, and several things have been mentioned in this thread, this example demonstrates the moral corruption that the “War on Drugs” has infused in our society. While Ed G has attempted to dissect who in particular is at fault here, it is, indeed, the government en masse. IT passed the laws, IT created the police units involved, IT ordered the raid, IT fell back on “you can’t touch me”. Asma y conservatives claim, government is out of control.
Ed G.:
Ontheleftcoast:Let’s call this what it was: a home invasion. …
Is this hyperbole, or are you sincere?
It absolutely is home invasion. What else do you call an assault in the middle of the night by armed men with their faces masked with Balaclava’s pointing AR 15’s and 9mm pistols at you, maybe throwing flash bang grenades who have just busted down your door and are screaming at you to get down and threatening to shoot your dog who’s understandably barking?
In the confusion you shoot them and you end up with a charge of attempted murder of a peace officer that can carry the death penalty in many states. They shoot you, and your widow or kids may get a “sorry” letter form the city attorney.
These methods should ONLY be used in rare cases where the police have solid evidence from multiple sources of serious potential for violent crimes. Even then the officers in charge should be at the door in STANDARD DUTY uniform with their badges and a search warrant , you know, looking like police and not a Seal Team. It should be RARE, not an everyday event.
Watch a no knock raid on COPS or you tube.
Sneak up , position team,
BANG BANG, pound on door “Police open up we have a warrant”
Then a second later they use their ram to knock down the door, maybe toss some flashbangs for good measure. The fiction of ” We announced and told them we had a warrant” is just a technicality.
And just how would you redress the injustice and try and deter the behavior?
Deeply troubling to read this, and very interesting.
In Massachusetts, we sometimes have overzealous Department of Social Services investigators looking to place kids in foster care. Lawyers tell parents firmly, “Do not let them in. You do not have to let them into your home.”
For good reason.
It is very important to read all of the facts in these circumstances. There was a jury trial, in which the jury found that the police failed to knock-and-announce; but they also found that the officer who shot the resident did not use excessive force. This is because, as stated in the 4th Circuit opinion:
So the facts were these: The police wrongfully entered an apartment. Then the resident of the apartment, after recognizing them as police, attacked them with a knife.
The entry was wrongful, but it was not the legal cause of the resident’s death. His own unlawful attack on the police was a “superseding” cause.
In short, it looks like the court reached the correct result.
As an interesting twist, the plaintiff in the case (the deceased resident’s father) strategically abandoned a claim for emotional distress damages suffered by the resident during the period after the wrongful entry, but before the resident recognized the intruders as police. This is because these damages would have been increased if the jury found that there had been a longer period between the resident’s discovery that his apartment had been entered and his recognition that the intruders were police; but such a longer period would have undermined the argument — which the jury evidently did not believe — that the resident never recognized that the intruders were police.
They did investigate. They received a tip of drug activity, which they corroborated by finding drug traces and drug paraphernalia in the trash. That gave them probably cause for the search warrant.
You know, it is precisely when there are small quantities of drugs involved that it is most important for the police to enter quickly, before the criminals can flush the evidence.
Now don’t get me wrong — the jury found that the police did not properly knock and announce, so they carried out an illegal entry. As discussed above, that illegal entry was not the cause of the resident’s death. But it seems to me that there are very good reasons for the police to want to catch criminals at unawares when it is time to carry out a drug search.
?Do you not see just how incredibly silly that sounds.
AP could not have better illustrated the moral bankruptcy of our system, when a 0430 SWAT raid is needed to catch some one with small amounts of drugs.
And a citizen is dead.
The jury found that the guy was shot appropriately ONLY because the judge, et al, made the jury feel that when you are suddenly awakened at 0430 by screaming men, you naturally assume it must be the police entering your domicile. Because, heck, ALL of us are wide awake and thinking clearly when our front door is shatttered and black clad balaclava-wearing men enter. HAS to be the police; no one else would consider this.
And a citizen is dead.
Bet the cops don’t feel any remorse, because “the court said …” They just shot a guy for no real reason. There are excuses, and legal shenanigans to hide behind, but in the end, this is as lawless an act as a bought sheriff arresting the opposition.
And a citizen is dead.
I am SO glad I never became a police officer. I can easily live with my time in combat, but this kind of action is not something I could get over. And I am glad I never became a lawyer, who seem to be fine with “The judge said” as a justification for this clearly outrageous behavior.
And a citizen is dead.
That is the Fourth Circuit’s finding, yes, but we do not — indeed, cannot — know what Cornish was thinking, as he was killed. All we can do is speculate with the facts available.
For reasons Judge Harris described in her dissent (echoed by Devereaux, above) I find this strains credulity given the time of night, lack of any reason for Cornish to have expected to be raided, and the fact that police appear to have been unaware that Cornish’s blade was still sheathed at the time of his death.
I think it’s all the worse, considering that the superseding cause defense is an affirmative defense, meaning the burden of proving it falls on the police officers. Under these particular circumstances, that strikes me as absolutely absurd.