Rise of the Warrior Cop (52 page)

That such “administrative searches” have become an increasingly common way for police to get around the Fourth Amendment is bad enough. More disturbing is the amount of force they’re opting to use when they do. In the fall of 2010, police in New Haven, Connecticut, sent a SWAT team to a local bar to investigate reports of underage drinking. Patrons were lined up at gunpoint while cops confiscated cell phones and checked IDs.
⁷¹
There have been similar underage drinking SWAT raids on college fraternities. The Atlanta City Council recently agreed to pay a $1 million settlement to the customers and employees of a gay nightclub after a heavy-handed police raid in which police lined up sixty-two people on the floor at gunpoint, searched for drugs, and checked for outstanding warrants and unpaid parking tickets. Police conducted the September 2009 raid after undercover vice cops claimed to have witnessed patrons and employees openly having sex at the club. But the police never obtained a search warrant. Instead, the raid was conducted under
the guise of an alcohol inspection. Police made no drug arrests, but arrested eight employees for permit violations.
⁷²

Federal appeals courts have upheld these “administrative searches” even when it seems obvious that the real intent was to look for criminal activity as long as the government can plausibly claim that the primary purpose of the search was regulatory. In the case of the Orlando raids, simply noting the arrests of thirty-four unlicensed barbers would be enough to meet the test.

But the Fourth Amendment requires that searches be “reasonable.” If using a SWAT team to make sure a bar isn’t serving nineteen-year-olds is a reasonable use of force, it’s hard to imagine what wouldn’t be. At least a couple of federal appeals courts have recognized the absurdity. In 2009 the US Court of Appeals for the Fifth Circuit struck a small blow for common sense, allowing a civil rights suit to go forward against the sheriff’s department of Rapides Parish, Louisiana, after a warrantless SWAT raid on a nightclub thinly veiled as an administrative search.
⁷³
And in 1995 the US Court of Appeals for the Eleventh Circuit made an even broader ruling, finding that having probable cause and a warrant for the arrest of one person in a club did not justify a SWAT raid and subsequent search of the entire club and everyone inside.
⁷⁴

But other legal challenges to paramilitary-style administrative searches have been less successful. Consider the bizarre case of David Ruttenberg, owner of the Rack ‘n’ Roll pool hall in Manassas Park, Virginia. In June 2004, local police conducted a massive raid on the pool hall with more than fifty police officers, some of whom were wearing face masks, toting semi-automatic weapons, and pumping shotguns as they entered. Customers were detained, searched, and zip-tied. The police were investigating Rutten-berg for several alleged drug crimes, although he was never charged. The local narcotics task force had tried unsuccessfully to get a warrant to search Ruttenberg’s office but were denied by a judge. Instead, they simply brought along several representatives of the Virginia Department of Alcoholic Beverage Control and claimed that they were conducting an alcohol inspection. Ruttenberg was cited only for
three alcohol violations, based on two bottles of beer a distributor had left that weren’t clearly marked as samples, and a bottle of vodka they found in his private office.

In June 2006, Ruttenberg filed a civil rights suit alleging that, among other things, using a SWAT team to conduct an alcohol inspection was an unreasonable use of force. (The town’s vendetta against Ruttenberg stretched on for years and is one of the strangest cases I’ve ever encountered. He eventually sold his bar and moved to New York.) In 2010, the US Court of Appeals for the Fourth Circuit denied his claim. So for now, in the Fourth Circuit, sending a SWAT team to make sure a bar’s beer is labeled correctly is not a violation of the Fourth Amendment.
⁷⁵

By the end of the decade, state and local SWAT teams were regularly being used not only for raids on poker games and gambling operations but also for immigration raids (on both businesses and private homes) and raids on massage parlors, cat houses, and unlicensed strip clubs. Today the sorts of offenses that can subject a citizen to the SWAT treatment defy caricature. If the government wants to make an example of you by pounding you with a wholly disproportionate use of force, it can. It’s rare that courts or politicians even object, much less impose consequences.

Another example is the use of these tactics on people suspected of downloading child pornography.

Because people suspected of such crimes are generally considered among the lowest of the low, there’s generally little objection to using maximum force to apprehend them. But when police use force to demonstrate disgust for the crimes the target is suspected of committing, there’s always a risk of letting disgust trump good judgment. In one recent case in West Virginia, police violently stormed a house after a Walmart employee reported seeing an image of a man’s genitals near a child’s cheek in a set of photos a customer had left at the store to be developed. After terrorizing the customer’s family (he was out of town), the police learned that the cheek in the photo wasn’t a child’s but that of a thirty-five-year-old Filipino woman.
⁷⁶

Given that most child pornography investigations today involve people who use the Internet to find or distribute the offending images and videos, the investigations can be fraught with problems. There have been several instances in recent years of police waging child porn raids on people after tracing IP addresses, only to learn after the fact that the victims of the raid had an open wireless router that someone else had used to download the pornography. Inevitably, the lesson drawn by police and by the media covering these stories is not that a SWAT raid may be an inappropriate way to arrest someone suspected of looking at child porn on a computer, or that police who insist on using such tactics should probably factor the possibility of an open router into their investigation before breaking down someone’s door, but rather that we should all make sure our wireless routers are password-protected—so we too don’t get wrongly raided by a SWAT team, too.
⁷⁷

It can also be difficult to trace an IP address to a physical address, which can lead to yet more mistaken raids. An example of that problem manifested in one of the more bizarre botched raids in recent years. It took place in September 2006, when a SWAT team from the Bedford County sheriff’s department stormed the rural Virginia home of A. J. Nuckols, his wife, and their two children. Police had traced the IP address of someone trading child porn online to the Nuckols’ physical address. They had made a mistake. As if the shock of having his house invaded by a SWAT team wasn’t enough, Nuckols was in for another surprise. In a letter to the editor of the
Chatham Star Review,
he described the raid: “Men ran at me, dropped into shooting position, double-handed semi-automatic pistols pointed at me, and made me put my hands against my truck. I was held at gunpoint, searched, taunted, and led into the house. I had no idea what this was about. I was scared beyond description.”

He then looked up, and saw . . .
former NBA star Shaquille O’Neal
.

O’Neal, an aspiring lawman, had been made an “honorary deputy” with the department. Though he had no training as a SWAT officer, Shaq apparently had gone on several such raids with other police
departments around the country. The thrill of bringing an untrained celebrity along apparently trumped the requirement that SWAT teams be staffed only with the most elite, most highly qualified and best-trained cops. According to Nuckols, O’Neal reached into Nuckols’s pickup, snatched up his (perfectly legal) rifle, and exclaimed, “We’ve got a gun!” O’Neal told
Time
that Nuckols’s description of the raid on his home was exaggerated. “It ain’t no story,” he said. “We did everything right, went to the judge, got a warrant. You know, they make it seem like we beat him up, and that never happened. We went in, talked to him, took some stuff, returned it—bada bam, bada bing.”
⁷⁸

Incidentally, there have been other strange incidents of SWAT teams with star power. Matt Damon accompanied SWAT officers on several raids while preparing for the movie
The Departed
. And after police mistakenly shot and killed immigrant and father Ismael Mena on a raid in Denver in 1999, they revealed that Colorado Rockies first baseman Mike Lansing had gone along for the ride. Denver police added that it was fairly common to take sports stars on drug raids.

In 2010 a massive Maricopa County SWAT team, including a tank and several armored vehicles, raided the home of Jesus Llovera. The tank in fact drove straight into Llovera’s living room. Driving the tank? Action movie star Steven Seagal, whom Sheriff Joe Arpaio had recently deputized. Seagal had also been putting on the camouflage to help Arpaio with his controversial immigration raids. All of this, by the way, was getting caught on film. Seagal’s adventures in Maricopa County would make up the next season of the A&E TV series
Steven Seagal, Lawman
.

Llovera’s suspected crime? Cockfighting. Critics said that Arpaio and Seagal brought an army to arrest a man suspected of fighting chickens to play for the cameras. Seagal’s explanation for the show of force: “Animal cruelty is one of my pet peeves.” All of Llovera’s chickens were euthanized. During the raid, the police also killed his dog.
⁷⁹

In the end, while the Supreme Court has laid down some avoidable requirements for obtaining a no-knock warrant (or deciding to conduct a no-knock raid at the scene), there are few court decisions, laws,
or regulations when it comes to when it is and isn’t appropriate to use a SWAT team and all the bells and whistles of a dynamic entry. The decision is almost always left to the discretion of the police agency—or in the case of the multi-jurisdictional task forces, to the SWAT team itself. The mere fact that there’s actually a split in the federal court system over the appropriateness of using SWAT teams
to perform regulatory alcohol inspections
at bars shows just how little attention the courts pay to the Fourth Amendment’s reasonableness requirement.

In other words, if the DEA wants to stick it to medical marijuana users because they’re flouting federal law, they can. If Steven Seagal wants to drive a tank into a man’s living room to demonstrate his love of animals, he can. If the Consumer Products Safety Commission (CPSC) wants to send a SWAT team to a physicist’s house to show that it’s cracking down on illegal bottle rockets, it can.
⁸⁰
At worst, the DEA, the CPSC, and Steven Seagal will be chastised by a judge after the fact, though that seldom happens. Even on the rare occasions when someone actually gets into court and wins an excessive-force lawsuit stemming from a raid, the damages are usually borne by taxpayers, not by the cops who used excessive force. In some cases, community outrage and bad press have persuaded police agencies to change a policy here or there regarding the deployment of their SWAT teams. But if they want to reneg and go back to breaking down the doors of people suspected of stealing decorative fish, there’s very little to stop them.
⁸¹

T
OWARD THE END OF THE
2000
S, THERE WERE HINTS THAT
the public was beginning to want a change, though that desire could manifest in unexpected ways. A former colleague at the Cato Institute, Tim Lynch, has told me that when he gives talks about the Waco raid, he finds that people are somewhat sympathetic to the argument that the government overreacted, but that they still can’t get past the weirdness of the Branch Davidians themselves—their stockpile of weapons and the claims of sexual abuse and drug distribution in the community. Even the children who died are sometimes
dismissed with guilt by association. But when he mentions that the ATF agents killed the Davidians’ dogs, Lynch tells me, people become visibly angry. I have found the same thing to be true in my reporting on drug raids.

At first, that may seem to indicate that people callously value the lives of pets more than the lives of people. But the fact that killing the dog during these raids has become nearly routine in many police agencies demonstrates just how casually those agencies have come to accept drug war collateral damage. When I started logging cop-shoots-dog incidents on my blog (under the probably sensational term “puppycide”), people began sending me new stories as they happened. Cops are now shooting dogs at the slightest provocation. As of this writing, I’m sent accounts of a few incidents each week.

It’s difficult to say if this is happening more frequently. There are no national figures, and estimates are all over the map. One dog handler recently hired to train a police department in Texas estimates there are up to 250,000 cop-shoots-dog cases each year. That seems high. In 2009 Randal Lockwood of the American Society for the Prevention of Cruelty to Animals (ASPCA) told the
Las Vegas Review-Journal
that he sees 250 to 300 incidents per year in media reports, and he estimates that another 1,000 aren’t reported. The
Indianapolis Star
reported that between 2000 and 2002 police in that city shot 44 dogs. A recent lawsuit filed by the Milwaukee owner of a dog killed by cops found that police in that city killed 434 dogs over a nine-year period, or about one every seven and a half days. But those figures aren’t all that helpful. They don’t say how many of those dogs were actually vicious, how many were strays, or how many were injured and perhaps killed as an act of mercy versus how many were unjustified killings of pets.
⁸²