Amicus curiae brief in support of the petitioners, on behalf of Seth Stoughton, in Kane v. Lewis, S. Ct. No. 15-193.
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No. 15-193 IN THE Supreme Court of the United States ANDREW KANE, Petitioner, v. BRIAN LEWIS, ET AL., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit MOTION BY SETH STOUGHTON FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE, AND AMICUS CURIAE BRIEF SUPPORTING PETITIONER HENRY W. ASBILL Counsel of Record JONES DAY 51 Louisiana Ave., NW Washington, DC 20001 (202) 879-5414 [email protected]IAN SAMUEL JONES DAY 222 East 41st Street New York, NY 10017 Counsel for Amicus Curiae
Transcript
No. 15-193
IN THE
Supreme Court of the United States
ANDREW KANE, Petitioner,
v.
BRIAN LEWIS, ET AL.,
Respondents.
On Petition for a Writ of Certiorari to the United States Court of Appeals
for the Fourth Circuit
MOTION BY SETH STOUGHTON FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE, AND
AMICUS CURIAE BRIEF SUPPORTING PETITIONER
HENRY W. ASBILL Counsel of Record
JONES DAY 51 Louisiana Ave., NW Washington, DC 20001 (202) 879-5414 [email protected] IAN SAMUEL JONES DAY 222 East 41st Street New York, NY 10017
Counsel for Amicus Curiae
No. 15-193
In the Supreme Court of the United States
ANDREW KANE, PETITIONER
v.
BRIAN LEWIS, ET AL., RESPONDENTS
Motion by Seth Stoughton for Leave to File Brief as Amicus Curiae in Support of Petitioner
Seth Stoughton hereby moves this Court, pursuant to Rule 37.2, for leave to file the attached brief as amicus curiae in support of petitioner. Petitioner con-sents to the filing of this amicus curiae brief. Re-spondents do not consent, and have not indicated whether they will oppose this motion for leave to file the brief. Counsel of record for both the petitioner and the respondent received timely notice of amicus curiae’s intent to file this brief, pursuant to Rule 37 of this Court.
Seth W. Stoughton is an Assistant Professor at the University of South Carolina School of Law. His scholarship focuses on the regulation of police and has been published in the Minnesota Law Review, the Tulane Law Review, the Virginia Law Review, and other journals. He regularly presents to law enforce-ment audiences, consults with police agencies, and testifies as an expert in litigation relating to police procedure. He has also appeared on national and in-ternational media and written about policing for The
2
New York Times, The Atlantic, TIME, and other news publications. His teaching includes courses on crimi-nal law, criminal procedure, and a seminar on the governmental regulation of vice.
Professor Stoughton also served as a uniformed pa-trol officer with the Tallahassee Police Department for five years. In that time, he trained other officers in report writing, helped create policies to govern the use of new technologies, earned multiple instructor and operator certifications, and taught personal safe-ty and self-defense courses in the community. In 2004, he received a Formal Achievement Award for his role as a founding member of the Special Response Team.
Professor Stoughton has an interest in this case because the court of appeals’ decision is premised on a fundamental misunderstanding of police tactics, the purposes of paramilitary police procedures, and the inherent dangers thereof. By their nature, tactics of the sort used in this case are intended to disorient and confuse the occupants of a building. That is not a side effect of an unannounced, dynamic entry—that is its very object.
But the court of appeals in this case assumed that a reasonable jury could not have concluded that the police tactics did what they were intended to do. In-deed, the court of appeals concluded that the occu-pant must have had a lucid and well-considered un-derstanding of just what was happening during the last moments of his life, and—therefore—the only permissible explanation for his behavior was that he elected to charge with a sheathed knife at a team of men he knew to be police officers whom he knew had their guns drawn.
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The attached amicus brief is submitted to correct that wide gap between the court of appeals’ funda-mentally mistaken understanding of police raids and the practical reality of such encounters, and to bring to the Court’s attention that paramilitary, SWAT-style raids like the one at issue here are increasingly common.
For the foregoing reasons, the motion of Professor Stoughton to file a brief as amicus curiae in support of Petitioner should be granted.
Respectfully submitted.
September 14, 2015
HENRY W. ASBILL Counsel of Record JONES DAY 51 Louisiana Ave., N.W. Washington, D.C. 20001 (202) 879-5414 [email protected] IAN SAMUEL JONES DAY 222 East 41st Street New York, NY 10017 Counsel for Amicus Curiae
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICUS CURIAE ............................ 1
A. The Police Tactics Used Here Are De-signed to Create Confusion .......................... 5
B. Because the Tactics at Issue in This Case Are Becoming Increasingly Common, Exercise of this Court’s Su-pervisory Power is Warranted ................... 12
Alexis Artwohl & Loren W. Christensen, DEADLY FORCE ENCOUNTERS (1997) ................ 10, 11
Radley Balko, Meet 59-Year-Old David Hooks, The Latest Drug Raid Fatality, The Washington Post (October 6, 2014), available at http://goo.gl/DjJEr3 .................................................................... 15
Radley Balko, OVERKILL: THE RISE OF
PARAMILITARY POLICE RAIDS IN
AMERICA (2006) .................................... 11, 12, 13, 14
Tim Carpenter, Broken Hearts, Broken Lives, Topeka-Capital Journal (Oct. 9, 2005), available at http://goo.gl/j4YTTw ................................................................... 15
Edward Erickson, Jr., Commando Cops, Orlando Weekly (May 7, 1998), available at http://goo.gl/idFpnC ........................... 14
TACTICAL PRIMER (2000) ...................................... 8, 9
Tracy Hightower, Boyd’s O.O.D.A. Loop and How We Use It, Tactical Response, https://tacticalresponse.com/blogs/library/18649427-boyd-s-o-o-d-a-loop-and-how-we-use-it ........................................ 8
Peter Kraska & V. E. Kappeler, Militarizing American Police: The Rise and Normalization of Paramilitary Units, SOCIAL PROBLEMS (1997) ...................................................................... 13
Law Enforcement Officers Killed, United States, 1961–2012, Sourcebook of Criminal Justice Statistics, Universi-ty of Albany (2012) ................................................. 13
Man Killed by Cops After Car Thief Alleges Meth Find, Atlanta Journal-Constitution (October 3, 2014), available at http://goo.gl/U3nmQN ....................... 15
Charles Remsberg, THE TACTICAL EDGE: SURVIVING HIGH RISK PATROL (1986) .......... 6, 7, 8, 9
Texas Ass’n of Police Explorers, BUILDING CLEARING / TACTICAL RAID, available at http://www.co.wise.tx.us/constable/Downloads/Building%20Clearing,Tactical%20Raid.pdf ...................................... 8
Utah Comm’n on Criminal & Juvenile Justice, 2014 Law Enforcement Transparency Report, available at http://libertasutah.org/drop/sb185_2014.pdf .................................................................. 14
INTEREST OF AMICUS CURIAE1
Seth W. Stoughton is an Assistant Professor at the University of South Carolina School of Law. His scholarship focuses on the regulation of police and has been published in the Minnesota Law Review, the Tulane Law Review, the Virginia Law Review, and other journals. He regularly presents to law enforce-ment audiences, consults with police agencies, and testifies as an expert in litigation relating to police procedure. He has also appeared on national and in-ternational media and written about policing for The New York Times, The Atlantic, TIME, and other news publications. His teaching includes courses on crimi-nal law, criminal procedure, and a seminar on the governmental regulation of vice.
Professor Stoughton also served as a uniformed pa-trol officer with the Tallahassee Police Department for five years. In that time, he trained other officers in report writing, helped create policies to govern the use of new technologies, earned multiple instructor and operator certifications, and taught personal safe-ty and self-defense courses in the community. In 2004, he received a Formal Achievement Award for his role as a founding member of the Special Response Team.
Professor Stoughton has an interest in this case because the court of appeals’ decision is not just le-gally mistaken—though it is. It is also premised on a fundamental misunderstanding of police tactics, the
1 No counsel for any party authored this brief in whole or in
part, and no person or entity other than amicus and his counsel made a monetary contribution to the preparation or submission of this brief.
2 purposes of paramilitary police procedures, and the inherent dangers thereof. By their nature, tactics of the sort used in this case are intended to disorient and confuse the occupants of a building. That is not a side effect of an unannounced, dynamic entry—that is its very object. But the court of appeals below as-sumed that a reasonable jury could not have conclud-ed that the police tactics did what they were intended to do. Indeed, the court of appeals concluded that the occupant must have had a lucid and well-considered understanding of just what was happening during the last moments of his life, and—therefore—the only permissible explanation for his behavior was that he elected to charge with a sheathed knife at a team of men he knew to be police officers whom he knew had their guns drawn.
This amicus brief is submitted to correct that wide gap between the court of appeals’ fundamentally mis-taken understanding of police raids and the practical reality of such encounters. Moreover, as paramilitary, SWAT-style raids become increasingly common, the judiciary is likely to confront more cases like these. This Court’s supervisory powers would be usefully expended to correct the error below, to ensure that juries drawn from the community can continue to en-joy their traditional and primary role in deciding whom they believe about what happens in such raids.
STATEMENT
For amicus’ purposes, the salient facts are these. This case arises out of a SWAT-style raid conducted at the apartment of Andrew Cornish. Pet. App. 3a. The police had found trace amounts of marijuana in a dumpster outside of Cornish’s duplex and secured a
3 warrant to search both apartments in the building. Pet. App. 20a. The police elected—the record does not reveal why—to execute this warrant by using a SWAT team to perform a paramilitary-style pre-dawn raid.
At approximately 4:30 a.m. the morning of the raid, the officers (respondents here) arrived heavily armed, brought a battering ram, and were wearing SWAT gear. Pet. App. 37a, 39a. They certainly were not wearing “‘the traditional and easily recognizable blue police uniform’”—rather, they donned “‘military-style helmets with goggle[s],’” as well as “‘bulletproof vest[s].’” Pet. App. 16a n.9. Although the officers claimed that they knocked and announced their pres-ence before entering, the other residents of the build-ing (who were, like Cornish, presumably asleep) testi-fied that they did not hear anything, Pet. App. 3a–4a, and the jury concluded that the officers entered with-out announcing their presence, Pet. App. 8a.
The officers testified that they entered Cornish’s home with their guns drawn, approached his bed-room, and tried to kick the door open. Pet. App. 4a. According to the officers, Cornish then suddenly emerged from his bedroom carrying a sheathed knife. Pet App. 4a. One of the officers then stepped back-ward and shot Cornish twice in the head, killing him instantly. Pet. App. 5a. A small personal amount of marijuana was eventually located in Cornish’s bed-room, Pet. App. 25a, and the knife—still in its sheath—was recovered from under his corpse, Pet. App. 5a. The entire incident (from entry until Cor-nish’s shooting) lasted around thirty seconds. Pet. App. 4a–5a.
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Following a trial, the jury concluded that the offic-ers had not knocked or announced their presence and that their failure to do so had been the cause of Cor-nish’s death. The court of appeals reversed, conclud-ing that (despite what the jury found) Cornish “‘must have known that the men in his apartment were po-lice officers,’” that “‘no reasonable jury could conclude otherwise,’” and that this intervening event—a free and considered decision to attack, with a sheathed knife, a team of police officers with their guns drawn—was an intervening cause of his death. Pet. App. 16a–17a (emphasis added).
SUMMARY OF ARGUMENT
The court of appeals held that it was literally in-conceivable that Cornish could have been confused about who had broken into his apartment—such that no reasonable jury could conclude otherwise. This conclusion rests on a fundamental misunderstanding about police tactics. The officers here deliberately employed paramilitary, SWAT-style tactics that are designed to produce exactly the result the court of appeals found so incredible: confusion, disorientation, and misapprehension. Rushing into someone’s house, unannounced and before the break of dawn, is sup-posed to surprise and confuse occupants—that is why police do it.
The court of appeals’ error is especially damaging, however, because paramilitary police raids are in-creasingly common. Such units are now routinely used to serve even very low-level drug warrants, as in this case, leading to an increased risk of exactly the sort of tragic mistake that occurred here. As a result, the number of cases like this one—where the jury is
5 called upon to make credibility determinations and decide whom they believe about what really hap-pened, often in situations where the officers are the only ones left alive—is likely to increase. This Court should exercise its supervisory powers and summari-ly reverse the judgment below to ensure that the jury retains its traditional and vital role in deciding the facts in these increasingly common raids.
ARGUMENT
THE JUDGMENT BELOW SHOULD BE SUMMARILY REVERSED BECAUSE IT RESTS ON A GRAVE MISUNDERSTANDING OF THE
EFFECTS OF INCREASINGLY COMMON PARAMILITARY POLICE TACTICS
A. The Police Tactics Used Here Are De-signed to Create Confusion
The central premise of the court of appeals’ opinion is that Cornish—despite what the jury concluded—“‘must have known that the men in his apartment were police officers,’” and “‘no reasonable jury could conclude otherwise.’” Pet. App. 16a–17a (emphasis added). In other words, the court of appeals conclud-ed that it was literally impossible for Cornish to have misunderstood what was happening in his apartment, and so he must have decided—“for reasons un-known”—“to advance with a [sheathed] knife on peo-ple he knew to be [heavily armed] police officers.” Pet. App. 16a n.9. That—as the petition amply establishes, Pet. 15–24—would be a dubious conclusion even in an ordinary case, simply as a matter of the deference owed to a jury’s findings of fact.
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But here, the court of appeals’ conclusion is almost exactly backward. The tactics that the police used in this case were created, developed, refined, and em-ployed precisely because they create exactly the sort of confusion and disorientation that the court of ap-peals found impossible to credit. A half-century of ex-perience and work by police departments across the country have resulted in the development of sophisti-cated tactics that are designed to confuse and disori-ent the occupants of a building that is being searched.
It is, by way of background, always extremely dan-gerous for a police officer to enter the residence of a suspect uninvted. For that reason, patrol officers have been instructed for decades that if “there is any other reasonable option … DO NOT GO IN”—especially “if [they] have good evidence that one or more suspects actually are inside.” Charles Remsberg, THE TACTICAL EDGE: SURVIVING HIGH RISK PATROL 82 (1986).2 Compared to the dangers of entry, it is better to “wait outside,” and wait for the suspect to “come out on their own and unwittingly run into your trap.” Ibid.
Where the objective is to search the home, of course, entry is inevitable. In that situation, good po-lice practice—as much for the officer’s safety as for the resident’s—is to clearly announce one’s identity as an officer before entering. Police are taught to “ad-
2 Remsberg’s training manuals, including this one, are wide-ly viewed as modern Bibles for police officers—police academy training across the country is based heavily on his influential work, and his books are treated as mandatory reading by some police instructors; amicus was given a free copy during his time at the academy.
7 dress the suspect(s) who may be inside,” which may “prompt an innocent party or a harmless suspect to emerge.” Id., at 90. And by “clearly announcing” their identity, an officer “may be able to buy time in which to better establish the suspect’s identity and inten-tions”—after all, the “last thing [an officer] want[s] is to use deadly force against someone who did not commit a crime.” Ronald J. Adams et al., STREET
SURVIVAL: TACTICS FOR ARMED ENCOUNTERS 109 (1980). Seen from this perspective, the knock-and-announce requirement is a critical protection not just for building occupants, but also for the officer herself. It guarantees the officer’s safety, and protects the of-ficer from doing something tragic.
To be sure, there are situations—rare ones—in which officers need to enter a home, but have good reason to believe that announcing their presence and intentions beforehand would create an unacceptably high risk of violent resistance or the loss of important evidence. In that situation, the police may elect to engage in what is typically called a “dynamic en-try”—a “no-knock or quick-knock raid[]” that “place[s] the citizens and police in an extremely volatile posi-tion, necessitating extraordinary measures.” Jack R. Greene, THE ENCYCLOPEDIA OF POLICE SCIENCE 792 (2007). Such raids are frequently conducted “during the predawn hours, usually in black military BDUs, ‘ninja’ style hoods, and military helmets.” Ibid. Rapid entry is gained “using specialized battering rams or entry explosives,” and the police may use “flash-bang grenades designed to temporarily disorient the occu-pants.” Ibid.
The timing, equipment, and tactics of a dynamic entry are grounded in an understanding of the
8 “OODA Loop”—short for “Observe, Orient, Decide and Act.” See Tracy A. Hightower, Boyd’s O.O.D.A. Loop and How We Use It, Tactical Response, available at https://tacticalresponse.com/blogs/library/18649427-boyd-s-o-o-d-a-loop-and-how-we-use-it. The OODA Loop is a simplified model of human reactions, founded on the idea that people take time to process new information, decide what to do, and implement that decision. To minimize a suspect’s opportunity to resist, SWAT officers are trained to overwhelm or short-circuit the suspect’s ability to observe what is going on, to orient themselves to events, and to decide how to respond. Rapid entry intentionally disrupts the suspect’s OODA loop—increasing the amount of time that a suspect needs to be able to react. Indeed, officers are taught that “the dilemma, disorientation, confusion, and sometimes panic created in the mind of the [suspect] must be fully exploited as a measure of control.” Texas Association of Police Explorers, BUILDING CLEARING / TACTICAL RAID 2, available at http://www.co.wise.tx.us/constable/Downloads/Building%20Clearing,Tactical%20Raid.pdf.
During such a raid, police “go in hard and fast, re-lying on speed, surprise, and radical tactics” that are intended to create a situation in which, from the sus-pect’s perspective, “one second there is nothing hap-pening and the next all hell breaks loose.” Remsberg, supra, at 229. The result, by design, is a “confused suspect.” Ibid. A suspect can resist only after making it through the OODA process, but that takes time—and one “method of depriving the suspect of time is by a surprise.” Charles Heal, SOUND DOCTRINE: A
TACTICAL PRIMER 79 (2000). Because all human be-
9 ings “are handicapped by an inability to instantly process and react to a new stimulus, surprise de-prives a suspect of the ability to react to new circum-stances effectively.” Ibid. The tactics accompanying the no-knock raid “have the ability to so overwhelm a suspect’s ability to comprehend what is happening that his reactions are slowed.” Ibid.
In other words, a no-knock or quick-knock raid is designed to ensure that the occupant is caught off guard, is unclear about what is happening, and is generally too disoriented to react in a considered way. Ideally, officers establish control of the scene so quickly that, by the time the suspect has overcome his confusion, he has no opportunity to resist. But not every situation meets that ideal. The law enforce-ment community has known for decades that a dy-namic assault is “infinitely more dangerous” than other entry tactics and its use is accordingly “very limited.” Remsberg, supra, at 237.
Conceived that way, dynamic entry is like dyna-mite: powerful, but unstable, and inherently danger-ous—and only to be used in situations where nothing else will do. In a hostage situation, for example, it is no use knocking on the front door and announcing “police, open up”—indeed, doing so may threaten the lives of the people within. In such a situation, there are no good options, and a dynamic entry with a SWAT team may be judged the least dangerous of a set of dangerous options. But such an entry is always accompanied by the risks inherent to a situation where confusion and disorientation are combined with speed and aggression such that, as Remsberg put it, “all hell breaks loose.” A dynamic entry is in-tended to be disorienting and confusing to prevent a
10 building’s occupants from acting, but it can also pre-clude them from accurately observing the situation. Inevitably, some individuals will react to a dynamic assault without realizing it is being performed by law enforcement. In other words, under stressful condi-tions, people will make reasonable mistakes.
Ironically, courts have long understood the above principles when it comes to evaluating the use of force by officers. In Graham v. Connor, 490 U.S. 386, 396–97 (1989), this Court reasoned that “police offic-ers are often forced to make split-second judgments” under conditions that are “tense, uncertain, and rap-idly evolving”—and as a result, courts are not to evaluate the reasonableness of the use of force “with the 20/20 vision of hindsight.” A lethal confrontation is not judged in light of what may “later seem unnec-essary in the peace of a judge’s chambers.” Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973).
The rule of Graham is founded on good practical wisdom—and its description of the pressures facing an officer in a potentially lethal confrontation (“tense, uncertain, and rapidly evolving”) has been quoted to countless generations of police trainees. Among other things, the psychological and perceptual effects of fear—especially sudden and unexpected fear—can reduce an officer’s ability to assess accurately and re-spond appropriately to visual and audio stimuli. See Alexis Artwohl & Loren W. Christensen, Deadly Force Encounters 38–50 (1997).
But the door swings both ways. The police here in-tentionally created a situation for Cornish that was tense, uncertain, and rapidly evolving. Moreover, un-like a police officer, Cornish was not “trained to use
11 to [his] advantage the natural physical, emotional, perceptual, and cognitive changes that occur during the fear response.” Ibid. The jury (perhaps displaying some of the same practical wisdom that inspired Graham) concluded that the police were successful in their effort to disorient and confuse Cornish; that he had not known that the men who broke down his door were officers; and, therefore, that the officers’ failure to knock and announce their presence was the cause of his tragic death.
The jury’s conclusion was, as a matter of black-letter police tactics (not to mention common sense), completely sound. The police—for reasons un-known—chose to serve a routine and low-level drug warrant against a non-violent suspect in an incredi-bly high-risk way, using tactics that “are by their very nature designed to catch victims at their most vulnerable, disoriented, and in a state of mind least capable of sound judgment.” Radley Balko, OVERKILL: THE RISE OF PARAMILITARY POLICE RAIDS IN AMERICA 32 (2006). But it is exactly the “intentionally inflicted confusion and disorientation, the forced entry into the home, and the overwhelming show of force” that increase the risk of dangerous mistakes on both sides—and it is not hard to see how an occupant “asleep in a room far away from the point of entry” might not be aware that the intruders are police of-ficers. Id., at 20.
The court of appeals was therefore quite wrong to conclude that Cornish must have known that the men were officers—the whole point of the officers’ dynamic entry was to gain a tactical advantage over Cornish by using confusion and disorientation to deny him the ordinary use of his faculties.
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B. Because the Tactics at Issue in This Case Are Becoming Increasingly Com-mon, Exercise of this Court’s Superviso-ry Power is Warranted
As the petitioner concedes (Pet. 29), this case does not satisfy the traditional criteria for certiorari. Peti-tioner contends that summary reversal is nonetheless appropriate, because the decision below badly misap-prehends the deference that appellate courts owe to jury verdicts. That contention is correct, and amicus agrees that summary reversal is warranted on that ground alone.
But there is an additional, equally compelling rea-son for this Court to exercise its supervisory powers: the paramilitary tactics used here are becoming dra-matically more common. The situation presented in this case is, unfortunately, likely to arise again. When it does, this Court should already have an-nounced clearly that determinations about “what re-ally happened” in such raids are questions for the ju-ry, and appellate courts are not to set them aside simply because the judges believe a different tale.
The idea for what we now call SWAT teams (“Spe-cial Weapons and Tactics”) was born in Los Angeles during the riots of the 1960s. See Balko, supra, at 6. But in an era of social turmoil, the concept quickly spread. The tipping point came in August 1966, when a former Marine barricaded himself at the top of a clock tower in Texas and shot 46 people, 15 of whom died, while the police struggled for more than 90 minutes to remove him. Robert Snow, SWAT TEAMS: EXPLOSIVE FACE-OFFS WITH AMERICA’S DEADLIEST
CRIMINALS 5 (2000). The incident “marked the birth
13 date of the modern police SWAT concept,” as public horror over the clock-tower shooting prompted the formation of SWAT teams in police departments across the country during the 1970s. Id., at 7.
The 1970s were an exceptionally dangerous time to be a police officer. In the ten-year period ending in 1980, nearly 115 officers had been murdered in the line of duty every year. In 1973 alone, there were 134 such killings. See Law Enforcement Officers Killed, United States, 1961–2012, Sourcebook of Criminal Justice Statistics Table 3.154.2012, University of Al-bany (2012) (data drawn from FBI’s Uniform Crime Reporting program). But even during those danger-ous times, SWAT teams and other paramilitary units were used sparingly—for example, in “bank robberies or hostage situations.” Balko, supra, at 4. Because SWAT teams were conceived to respond to genuine crises—like a shooter at the top of a clock tower—they were generally used accordingly, and “‘no-knock’” raids were restricted to situations where innocent lives were “determined to be at imminent risk.” Ibid. That, for the reasons discussed above, is good policing: SWAT-style no-knock raids are an important tool for police, but because of the inherent dangers, they should not be used except when truly necessary.
The growth of SWAT teams continued until, by 1997, 90 percent of cities with populations of at least 50,000 people had at least one paramilitary unit—twice as many as ten years earlier. Peter Kraska & V. E. Kappeler, Militarizing American Police: The Rise and Normalization of Paramilitary Units, SOCIAL
PROBLEMS (1997). Typically, such units are justified “in case of a hostage situation or a Columbine-type incident.” Balko, supra, at 9. Fortunately, most com-
14 munities do not have frequent hostage situations or active shooters.
But once created, paramilitary units are not al-lowed to simply lie dormant. Regardless of their stat-ed justifications, SWAT teams “are inevitably used far more frequently, mostly in the service of drug warrants.” Ibid. The result is that the sort of raid at issue in this case is becoming extremely, and increas-ingly, common. In 1971, there were four SWAT raids in the entire country. See Edward Ericson, Jr., Com-mando Cops, Orlando Weekly (May 7, 1998), availa-ble at goo.gl/idFpnC. By the early 1980s, there were 3,000 SWAT deployments per year; by 1996, 30,000; and by 2001, 40,000. Balko, supra, at 11.
The expanding use was not caused by increasing crime. Between “1980 and 1995, the number of times that SWAT units were dispatched increased by 538 percent while the crime rate was flat.” Ericson, supra. Minneapolis alone had more than 700 paramilitary drug raids in 1996. Britt Robson, Friendly Fire, MINNEAPOLIS CITY PAGES (Sept. 17, 1997) (describing a drug raid in which a police officer was shot by one of his own colleagues while searching a home at which a marijuana sale had occurred). In 2014, Utah, the only state that currently tracks police tactical teams, reported that more than 78 percent of de-ployments related to drugs; by contrast, a mere 2.33 percent of deployments related to active shooters (0.36 percent), barricaded suspects (0.54 percent), and hostage situations (1.43 percent) combined. Utah Commission on Criminal and Juvenile Justice, 2014 Law Enforcement Transparency Report, at 5, availa-ble at http://libertasutah.org/drop/sb185_2014.pdf
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The situation presented by this case is therefore likely to recur, as the routine use of SWAT teams and tactics (in situations far removed from the sort that led to their creation) leads to the kinds of tragic con-sequences seen here. In October 2014, for example, a thief stole a car from the home of David Hooks, a 59-year-old grandfather who lived in rural Georgia. See Man Killed by Cops After Car Thief Alleges Meth Find, Atlanta Journal-Constitution (October 3, 2014) available at goo.gl/U3nmQN. When the police arrest-ed the thief, they found methamphetamine on him—but he told them that he had found it in the car he had stolen. Ibid. Evidently believing this story, offic-ers dressed in camouflage raided Hooks’ house at 11 p.m. that night. Ibid. The police broke down the back door, shot Hooks sixteen times, and searched his home for 44 hours. Ibid. No drugs were found. Ibid.
In Hooks’ case, just as in this one, the police used a paramilitary SWAT unit and did not knock or an-nounce their presence. Ibid. There, just as here, this led to a serious misunderstanding: Hooks’ wife thought that “[t]he burglars [were] back,” and warned her husband accordingly just before he went downstairs where the police killed him. Radley Balko, Meet 59-Year-Old David Hooks, The Latest Drug Raid Fatality, The Washington Post (October 6, 2014), available at goo.gl/DjJEr3. There are many other tragic examples—and often, it is the officers them-selves who are injured or killed when an occupant mistakes them for burglars. See, e.g., Tim Carpenter, Broken Hearts, Broken Lives, Topeka Capital-Journal (Oct. 9, 2005), available at goo.gl/j4YTTw (describing a 2:50 a.m. police raid on a college student suspected of selling marijuana, which caused the student—
16 assuming he was being robbed—to shoot and kill one of the “intruders”). These tactics, in other words, are not just dangerous to the occupants; they are danger-ous for the officers, for bystanders, and just about everyone else.
It is not for this Court to say whether, as a policy matter, paramilitary SWAT units are desirable things. It is not, in fact, a decision for any court. The issue is one for the people themselves, as they act through their legislatures and public officials to set local policy. But so, too, is the question of what hap-pens when such units go awry, as the people act through their juries to enforce the Constitution’s hard-won guarantees against unreasonable searches and seizures. And that is precisely the problem with the court of appeals’ decision. It deprives the commu-nity of one of the only means it has to review and oversee the use of these increasingly common para-military units. If a jury is not permitted to say “we believe that this illegal no-knock drug raid was the cause of an avoidable death,” then a critically im-portant check on the use of these tactics will be gone.
The circumstances of this case are not, in sum and unfortunately, unusual. Tragic mistakes in paramili-tary police raids are common and likely to become moreso. It is therefore a worthwhile exercise of this Court’s supervisory power to summarily reverse the judgment below, to ensure that courts of appeals al-low the jury to decide for itself what really happened in such deaths.
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CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari should be granted, and the judgment of the Fourth Circuit should be reversed.
Respectfully submitted.
September 14, 2015
HENRY W. ASBILL Counsel of Record JONES DAY 51 Louisiana Ave., N.W. Washington, D.C. 20001 (202) 879-5414 [email protected] IAN SAMUEL JONES DAY 222 East 41st Street New York, NY 10017 Counsel for Amicus Curiae
