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Court signals loosening of the last reins on police

Published June 25, 2006

The U.S. Supreme Court just eviscerated the "knock and announce" rules that require police to announce their presence and give residents a bit of time before smashing in their door. Justice Antonin Scalia's majority opinion in Hudson vs. Michigan, discounted the privacy interest involved, sneering that "knock and announce" amounts to little more than the right "not to be intruded upon in one's nightclothes."

(I don't know about him, but I would put a pretty hefty premium on avoiding that particular scenario.)

But Scalia has a point in implying that the case has little practical importance, since the protocol that police knock, identify themselves and then wait 15 or 20 seconds before entering, has gone the way of the 50-cent cup of coffee. It can still be found, but not nearly as often as it used to be.

The Joe Friday approach to conducting a search has been replaced by Rambo in riot gear because years earlier the high court permitted the waiver of the "knock and announce" requirement - a rule grounded in our Fourth Amendment privacy rights - in almost every circumstance. If there's a chance that evidence will be destroyed - such as the possibility of drugs being flushed down the toilet, or a potential for physical violence - such as, the police suspect there is a gun in the home, the Supreme Court has said it is not necessary to give advanced notice of entry.

We now have plenty of experience with "no-knock" warrants, as they are called, and the trail of victims this terrorizing tactic has left behind.

Radley Balko, a policy analyst at the libertarian Cato Institute, says that he has documented nearly 200 cases of "wrong door" raids occurring in the past 15 years, where the police broke into an innocent person's house. He says the correct figure is probably higher, but police and prosecutors don't generally bother keeping statistics on the operations they botch.

And when police come charging through the wrong door, they aren't dressed in a trench-coat and Dockers. These raids are typically conducted by militarized SWAT teams, outfitted for war. They are dressed in black masks and carry military-issue automatic weapons and other paramilitary gear, obtained gratis from the Pentagon. Anyone who experienced such a raid must have felt like they were being attacked by an invading army. It isn't any wonder that, as in war, there is significant "collateral damage." Balko has counted two dozen people who were innocent yet died during one of these raids.

Some of the more notorious examples include the 1994 case of 75-year-old retired Methodist minister Accelyne Williams, who was reading a Bible in his living room when Boston police crashed through his door with sledge hammers. He died of a heart attack after being wrestled to the ground and handcuffed.

Similarly, in 2003, Alberta Spruill, a 57-year-old employee of New York City, died after police battered her door in and threw a concussion grenade inside. The coroner ruled that Spruill's death was a homicide. She had been scared to death.

Sometimes, the victim gets shot because his natural reaction to an invasion by gun-toting masked men is to reach for a firearm himself.

Is this highly confrontational tactic really necessary to secure evidence or ensure police safety when serving drug warrants? Jack Cole says, not in the least.

Cole is the executive director of Law Enforcement Against Prohibition (, an international drug-policy reform group made up of former drug warriors - police, prosecutors, wardens - who believe the U.S. War on Drugs has been a destructive failure. He is also a retired detective lieutenant and undercover narcotics investigator who spent 26 years with the New Jersey State Police.

According to Cole, "too much violence is instigated by the police and it's just not necessary" to do the job. Cole says a war metaphor has no place in domestic policing in a democratic society. When there is a war, there has to be an enemy, Cole says, and since 110-million people in this country above the age of 12 have admitted to having used an illegal drug, "the enemy is us."

Cole says that whenever he served a warrant, he was able to come up with some ruse to get an occupant to open the door without breaking it down or using violence. "You just don't have to go in as a SWAT team," Cole says.

SWAT teams have proliferated not because they are needed, but because police like to play soldier with relatively little of the battlefield risk; and they have been goosed along by a federal government that hands out surplus military implements like candy.

The only counterforce to all this has been the U.S. Supreme Court and its rulings establishing basic standards for police interactions with the public. But with the Hudson case it is pretty clear there is a five-member majority for loosening whatever reins still exist. So, expect the "war" to get more bloody and its casualty list to get longer. Welcome to the Roberts court.

[Last modified June 25, 2006, 05:38:08]

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