Lind reports: "Most of the time, when a person kills an intruder who breaks into his home, dressed in all black and screaming, the homeowner will avoid jail time. But what happens when the break-in was a no-knock SWAT raid, the intruder was a police officer, and the homeowner has a record?"
Swat team. (photo: Shutterstock.com)
30 October 14
ost of the time, when a person kills an intruder who breaks into his home, dressed in all black and screaming, the homeowner will avoid jail time. But what happens when the break-in was a no-knock SWAT raid, the intruder was a police officer, and the homeowner has a record?
A recent pair of cases in Texas are an example of how wrong no-knock raids can go, for both police and civilians, and how dangerously subjective the SWAT raid process can be. In December 2013, Henry Magee shot and killed a police officer during a pre-dawn, no-knock drug raid on his home. He was initially charged with capital murder, but he argued that he shot the police officer, who he thought was an intruder, to protect his pregnant girlfriend. In February, a grand jury declined to indict him, and charges were dropped.
In May, a Texas man named Marvin Guy also killed a police officer during a pre-dawn, no-knock raid on his home. Guy, too, was charged with capital murder. Unlike Magee's grand jury, a grand jury in September allowed the capital murder charge against Guy to stand. Guy, who is black, now faces the death penalty. Magee is white.
Magee's case wasn't completely identical to Guy's — the latter had done prison time on robbery and weapons charges, while Magee's previous arrests were for marijuana possession and DUI. But the circumstances of the raids, if anything, made Guy's reaction more justifiable. Police were trying to enter McGee's house through the door when he shot at them, while, in Guy's case, they were trying to climb in through the window. And during the raid on McGee's house, the cops did in fact find a few pounds of marijuana plants. In the raid on Guy's house, they found nothing.
Advocates say these cases highlight racial bias in the criminal justice system, particularly when the victim is a police officer. But they also highlight the bizarre nature of no-knock raids, which have been criticized for causing unnecessary confusion and endangering innocent adults and children.
In theory, no-knock raids are supposed to be used in only the most dangerous situations. So what might be most surprising about them is how infrequently police officers get killed when they bust into suspected criminals' homes unannounced.
In reality, though, no-knock raids are a common tactic, even in less-than-dangerous circumstances. There are a staggering 20,000 or more estimated no-knock raids every year across America. By the numbers, it's clear that no-knock SWAT raids are far more dangerous to civilians than they are to police.
Here's what you need to know about why no-knock raids happen, why police think they're necessary, and what happens when things go wrong.
How did no-knock raids become a thing?
The Fourth Amendment protects citizens from "unreasonable search," meaning police can't bust into your home whenever they feel like it — they need a warrant, granted by a judge. Even a search warrant doesn't give police the right to enter your home by force — they're supposed to knock, announce themselves, and give you a chance to open the door.
But as the war on drugs ramped up in the 1970s and 1980s, police argued that criminals and drug dealers were too dangerous to be granted the typical courtesy of knocking first. In the early 1970s, the federal government made it legal for federal law enforcement agents to conduct no-knock raids — but the law was so widely abused that it was repealed a few years later.
Since then, though, a series of court decisions and state laws have carved out a set of circumstances that make it legal for police to raid a house without announcing their presence beforehand. This has happened at the same time that SWAT teams have proliferated around the country. (For more on the history behind SWAT teams and no-knock raids, check out Radley Balko's definitive book on the subject, Rise of the Warrior Cop.)
Most SWAT teams spend their time carrying out home raids. The ACLU analyzed 818 records of SWAT exercises from police departments around the country in 2011 and 2012. They found that 80 percent of the time, SWAT teams were deployed to execute a search warrant — instead of crises such as hostage situations or active shooters.
Not all SWAT raids are no-knock raids; police are supposed to jump through an extra set of legal hoops before they can raid someone's house without knocking. But the line between regular SWAT raids and no-knock raids can get a little blurry.
SWAT teams often use quick-knock raids during which they might not give the suspect a whole lot of time to answer the door after they announce their presence. The legal standards for no-knock and quick-knock raids are different, but to someone whose house is being raided, they can seem pretty similar.
Why do police use no-knock raids?
It's rare that police really need to raid a home in order to bust someone for drugs. They could always set up a drug buy on the street and surround the suspect there. But police have focused on drug busts in stash houses, or in dealer's homes, for a few reasons.
For one thing, busting the house where drugs are stored in bulk disrupts the drug supply chain, in theory. For another, if they can charge a dealer with not just the drugs he happens to have on him or in his car when he's arrested, but with anything he's keeping in his house, they can slap him with a longer prison sentence. And finally, thanks to civil asset forfeiture, raiding a home lets cops seize whatever drug money (or other illegal money) is being stored there — and perhaps even the home itself — and use it for their own departments.
Over the last few decades, police have also argued successfully that there are some circumstances in which a standard "knock and announce" raid would either jeopardize police safety or make it impossible for them to fight crime.
What are the rules for a no-knock raid?
To get a special no-knock warrant signed by a judge, police have to show that a standard "knock-and-announce" raid wouldn't work. There are two different arguments police can use for this:
The first of those sounds pretty straightforward. The second is rather broad. If they think there are drugs in the house, and the drugs could get flushed down the toilet, police have a case for a no-knock raid. (It's been argued that this actually makes police more likely to use no-knock raids on small-time dealers rather than major ones, because major dealers would likely have too much product to flush down the toilet.)
For a more detailed, but easy-to-follow, explanation of the legal standards for raids, check out webcomic artist Nathan Burney's Illustrated Guide to Law.
Is it hard for police to meet those standards?
Nope. It's rare that judges deny warrants for no-knock raids.
Back in 2000, the Denver Post analyzed a year's worth of no-knock warrants and found that judges rejected five out of 163 requests. The Post also found that, 10 percent of the time, a judge would approve a no-knock raid even when police had simply asked for a standard warrant.
Unsurprisingly, proving that a subject is too dangerous for a regular warrant is pretty subjective — especially for drug searches. Often, police will assert that the suspect is "high-risk." Other times, they'll say that the suspect is "likely to be armed" because they think the suspect might have gang affiliations or because he has been convicted on weapons charges in the past or, sometimes, without any reasoning at all.
In other cases, police have said they need to conduct a no-knock SWAT raid when homeowners have legally registered guns — to the outrage of conservatives and libertarians. (It's unclear why police think that someone who is following gun-registration laws is likely to open fire on police officers, or why it's safer for them to burst into a known gun owner's house unannounced instead of knocking.)
In one case in spring 2014, police in Iowa conducted a no-knock SWAT raid on the home of people suspected of credit-card fraud, and tried to destroy the security cameras in the house. The police defended the raid afterward by saying that another person in the house — not the ones they were looking for — had a registered gun.
Even without a special warrant, if police at the scene have reasonable belief that they can't afford to knock, they're justified in barging in.
In fact, in a case that went to the Supreme Court in 2011, Kentucky police successfully argued that it was okay for them to bust down a door of an apartment they didn't have a warrant to search, because they smelled marijuana in the apartment and heard the sound of a toilet flushing. They'd been looking for a drug dealer in the building and assumed that the dealer must have lived in that apartment. He didn't, but they arrested the occupant for having marijuana and cocaine anyway.
Is there ever such a thing as an unjustified no-knock raid?
Sure. If police officers didn't get a warrant to conduct a no-knock raid, and there's no evidence on the scene that changes the situation, it's illegal for them to just bust in.
But when they conduct an unjustified raid, it doesn't really matter.
Usually, when police do something illegal in order to get evidence of a crime, that evidence can't be used in court. (Lawyers call this the "exclusionary rule.") That's pretty significant — it's not very easy to convict someone for having a few kilograms of cocaine in his house if the prosecutor can't mention the cocaine.
But about a decade ago, the Supreme Court decided that rule didn't apply to evidence collected during an unjustified no-knock raid — as long as police would have gotten hold of the evidence anyway, through a traditional raid.
The police who conducted an unjustified raid can still be disciplined by their department's internal affairs unit (though that's uncommon). And they can still be sued by the victims, though lawsuits against police don't succeed very often.
How often do civilians get injured or killed in SWAT raids?
The ACLU analysis found at least seven civilian deaths in the 818 SWAT reports they analyzed. In two of those cases, the suspect appeared to have committed suicide to avoid being taken by police. Forty-six civilians were injured. It's not clear whether any of these incidents were investigated by a prosecutor or the police department, or whether any of the officers were disciplined.
Other analyses have turned up more cases of civilian injuries; a 2006 Cato Institute paper by Radley Balko collects cases of SWAT raids gone wrong throughout history.
For family members of loved ones killed or injured during these raids, it can be very difficult to find justice. (For a more in-depth look at the legal latitude police have to use force against civilians, read this explanation of when it's legal for a cop to shoot you.)
In May 2014, police in Georgia threw a flash-bang grenade into the crib of a 19-month-old toddler during a SWAT raid. The toddler, Bounkham Phonesavanh, was burned so badly that he was placed into a medically-induced coma. In October, a grand jury decided the officers shouldn't be charged for injuring Phonesavanh. The grand jury accepted the police chief's explanation that the officers hadn't seen any evidence there was a child in the house (despite the fact that, according to Phonesavanh's mother, there were toys in the yard) and had needed to throw the grenade to distract the suspect (who was not home at the time).
In another high-profile case, Detroit police killed seven-year-old Aiyana Stanley-Jones during a no-knock raid in 2010. Stanley-Jones was sleeping on the couch when a police officer's bullet hit her skull. (The raid was being taped for an A&E Cops-style reality show called The First 48.) The officer who killed Stanley-Jones was put on trial in October 2014, but the most serious charges against him were dismissed, and the jury deadlocked on whether to convict him for reckless use of a firearm — causing the judge to declare a mistrial.
How often do police find what they're looking for?
There isn't great data, but the ACLU's analysis showed that about 35 percent of SWAT drug raids turned up contraband, while 36 percent of them turned up nothing. (And 29 percent of SWAT reports didn't mention whether they found anything — a fact police are more likely to omit when they didn't find anything than when they did.) In forced-entry SWAT raids, the "success" rate of actually finding drugs dropped to about a 25 percent.
Not all drugs the SWAT team found were the ones they were looking for. In several cases, SWAT teams will raid a house looking for a large stash of drugs, only to find a small quantity of marijuana for personal use. But that counts as finding "contraband" in the raid report, and it's something they can arrest the homeowner for.
Sometimes, SWAT raids simply hit the wrong house. Either the address on the warrant is wrong (or police misread it), or the warrant itself is based on bad information. In the raid that killed Stanley-Jones in Detroit, for instance, police had entered the wrong apartment — the one they meant to raid was upstairs.
In 2003, the commissioner of the NYPD estimated that, of the more than 450 no-knock raids the city conducted every month, 10 percent were wrong-door raids. That estimate came after a wrong-door raid resulted in the homeowner's death: when police broke into the home of 57-year-old Alberta Spruill and threw in a flash-bang grenade, the shock gave her a fatal heart attack.
How often do police get injured or killed in SWAT raids?
The ACLU's analysis didn't include any cases of police getting injured or killed during a raid, which implies that it's more common for a civilian to get hurt than a police officer. But there are cases of police officers getting shot and killed during SWAT raids — such as the Guy and McGee cases in Texas.
More recently, on October 28, a police officer in Pomona, California was shot during an early-morning SWAT raid. He was there to serve a search warrant as part of an investigation into a motorcycle gang.
In some of these cases, the target of the raid might reasonably claim self-defense; the law allows a homeowner to defend himself against someone he thinks is an intruder. But unlike when a cop shoots a civilian in a raid, a homeowner doesn't have a police chief on hand to tell a jury that the shooting was justified. So, as Guy's case demonstrates, even though civilians are more likely to get killed in SWAT raids than cops, civilians are the ones more likely to get brought into court for murder.
