As the officers made their way to the back of the house, where the Avina’s 11-year-old and 14-year-old daughters were sleeping, Rosalie Avina screamed, “Don’t hurt my babies. Don’t hurt my babies.”
The agents entered the 14-year-old girl’s room first, shouting “Get down on the fucking ground.” The girl, who was lying on her bed, rolled onto the floor, where the agents handcuffed her. Next they went to the 11-year-old’s room. The girl was sleeping. Agents woke her up by shouting “Get down on the fucking ground.” The girl’s eyes shot open, but she was, according to her own testimony, “frozen in fear.” So the agents dragged her onto the floor. While one agent handcuffed her, another held a gun to her head....
After two hours, the agents realized they had the wrong house—the product of a sloppy license plate transcription—and left.As the article notes, the Justice Department has decided to go to court in favor of the notion that Federal agents have a right to hold a gun to the head of 11-year-old children. I'm pretty sure that no such right can possibly exist, though they plainly have the power at present.
Anyway, the Ninth Circuit found that this conduct was "unreasonable." So when does someone at DEA go to jail for unreasonably deploying lethal force against an 11-year-old during a wrongful raid? Never, that's when.
34 comments:
"Bad address" appears to happen all too often with DEA and SWAT raids.
There definitely need to be some penalties for such sloppiness.
One of the rare cases where I agree wholeheartedly with the 9th Circus :p
Cass, they say that a blind pig finds an acorn now and then. I think it's the blatancy of the errors in this one that pushed the 9th over the edge and into the realm of reason.
LittleRed1
And I got disagreed with for saying the US is already a police state.
I think it's the blatancy of the errors in this one that pushed the 9th over the edge and into the realm of reason.
OK, that made me laugh out loud :p
And I got disagreed with for saying the US is already a police state.
I suppose it depends on whether you think the predictable fact that even with a set of laws that protects the rights of the citizenry, any system run by humans will inevitably result in situations where humans screw up makes "a police state".
Do you define the system by the worst case scenarios, or by the majority of cases where things work well?
Any by that logic, why not choose the best case scenarios as your metric?
Do you really believe the US is comparable to countries where the police regularly round people up and "disappear" them and there's no recourse through the legal system?
The test of the rule of law isn't that no one ever breaks the law or exceeds their authority. It's whether there is some recourse when things don't go well. I think that has to matter.
Well, there's "some" recourse here, but there's no recourse for the family in terms of correcting the policemen. They can't be individually sued, nor even apparently are they to be stripped of their badges (let alone tossed into jail). I'm not sure the system provides adequate recourse.
Still, we're working on that. Indiana at least has corrected the problem where the courts found citizens had no right to resist even an illegal police invasion of their homes. That seems like an invitation to abuse by bad cops, but also to invite robbers to simply impersonate cops (which is a serious enough problem, given the prevalence of raids as a means of law enforcement).
... there's no recourse for the family in terms of correcting the policemen. They can't be individually sued, nor even apparently are they to be stripped of their badges (let alone tossed into jail).
You don't know that, actually, as part of the case has been remanded to the District Court. It's not over until it's over.
I'm curious: on what charge would you throw these men in jail or strip them of their badges? Do we make up laws on the spot when we don't like what has happened? Do we throw out the traditional legal protections for the accused? Do we adopt a "guilty until proven innocent" standard for pending cases and punish before the facts and the law have been adjudicated?
Or do we work through an imperfect system run by imperfect people on the theory that it's better to be measured about ruining a person's career and throwing him in jail than to give in to anger?
As far as stripping their badges, I'd do it on the strength of their lack of judgment alone. You shouldn't need a law, or formal charges, to recognize that people with this kind of judgment don't need to be the ones you task with these kinds of dangerous and delicate actions.
As long as the people who thought it was reasonable to curse and cuff and threaten a sleeping child with deadly force are no longer empowered to kick down doors and raid people's homes, I can be patient about the rest of the process.
One more point.
In answer to your question:
... when does someone at DEA go to jail for unreasonably deploying lethal force against an 11-year-old during a wrongful raid?
That's not what happened here. No lethal force was used.
Lethal force has a specific meaning:
An amount of force that is likely to cause either serious bodily injury or death to another person.
Yelling at someone, pointing a gun but not pulling the trigger, or handcuffing them is not lethal force. But the answer to your question would seem to be, "If it violates the law".
Either way, this is a tort claim. Jail is not a remedy for tort (civil) claims - monetary damages are the usual remedy.
As far as stripping their badges, I'd do it on the strength of their lack of judgment alone. You shouldn't need a law, or formal charges, to recognize that people with this kind of judgment don't need to be the ones you task with these kinds of dangerous and delicate actions.
That's a separate issue, though. It's an administrative action, not a legal remedy.
Do you think it's a good idea to pass a law that says anyone who is handcuffed can sue to have the police officer fired? Do you think such a law might be abused?
Pointing a gun but not pulling the trigger may not meet the specific standard you're thinking of -- I assume that's Maryland law? -- but pointing a gun at someone puts them in deadly danger. Remember my poor eye doctor, Sal Culosi, who was shot and killed in a similar situation. Just because you don't mean to pull the trigger doesn't always mean that the trigger doesn't get pulled: especially under stress, when your knuckles may be pretty tight.
Pointing a gun at the head of a sleeping child is terrible judgment. As far as I'm concerned, it's reason enough.
Do you think it's a good idea to pass a law that says anyone who is handcuffed can sue to have the police officer fired?
I'm the wrong person to ask. I have strong feelings on the subject of putting chains on free people. I don't think it's right, but it has become a kind of standard procedure in many cases where guilt is uncertain.
I understand the issues around the safety of the officers, but I don't think they outweigh the dignity of a free citizen. No one should be chained against their will without due process of law, which ought to include more than simply being ordered by a state official to accept it.
I'm the wrong person to ask. I have strong feelings on the subject of putting chains on free people.
Frankly, I think that's pretty clear. Here're the relevant facts as I see them, from following some of the links in the chain.
The officers, having entered what they believed to be a violent drug trafficker's home and in the course of subduing the occupants--whom they still believe to be violent--encounter children aged 14 and 11 in a separate room, away from the parents.
Thus, the only witnesses to the encounters with the children were those children and the officers. One side says swearing, pointing guns, and so on. The other side says
Agents also entered the bedrooms of plaintiffs B.F. and B.S. Avina, who were then fourteen and eleven years old, respectively. Both girls were in bed at the time, and B.S. was sleeping. B.F. complied with the agents’ instruction to get on the ground, and the agents thereafter handcuffed her. B.S. initially resisted the instruction, and agents responded by assisting her to the floor and handcuffing her. The agents did not use profanity in speaking to the girls.
Now some editorializing. This description is presented by your original referent in the wholly objective manner of: To sway the court, Obama administration lawyers softened their depiction of the agents' treatment of the 11-year-old and 14-year-old girls.... as the lead-in to the above. They follow the officers' quote with this pearl of neutral description: Compared to the Ninth Circuit’s ruling, which uses the facts presented by the Avinas, this is an utter white-washing. The girl identified as “B.S.” is the Avinas’ 11-year-old daughter. She did not “resist the instruction,” but was “frozen in fear.” Agents did not “assist her to the floor,” they dragged her off her bed. They did not just handcuff her, they held a gun to her head.
Of course. They're cops. The facts presented by them are to be completely discounted; they're lying, and the children are paragons of virtue.
In the end, we don't know that the cops pointed their guns at the girls, we don't know that they pointed their guns in the general direction of the girls, we don't know whether they had their fingers on their triggers, if they did do any pointing (which would have been the only thing causing any real danger)--we don't know anything about what went on in the girls' bedrooms.
But we do know that there were cops involved in a violent entry into a home, which entry turned out to be mistaken. Guilty. Hang 'em.
Eric Hines
What Eric said. We also don't know how well lit the children's room was. Just by the by, when I was 12 I easily passed for 16 or 17. I was only 1 inch shorter than my eventual height as an adult.
Sorry, but as outrageous as this story sounds when you only quote one side... well, you're only quoting one side. That's why we have courts of law - to ensure that both sides are heard by objective third parties. On the face of it, this sounds like a raid gone very wrong. But unlike Grim I would never punish the accused officers based on a one sided account because (unlike Grim) I think even accused police officers deserve due process.
Still, if I'm ever violently raped and call the police for help, I know I will take great comfort in the knowledge that no violent rapist... err... free citizen should be chained against his will without due process. Better that he escape to rape again than that he have to experience the shame and humiliation of being handcuffed.
I'm sure any other women he violently rapes while we're waiting for sufficient due process to occur will be comforted as well. I know that when I'm weighing the dangers of living in the modern world, I fear the evil, thuggish police so much more than I fear the criminals they exist to protect us from.
This is basically the tone the anti-war crowd took during the Bush years, but somehow the police (unlike the military) should be presumed guilty?
Just by the by, when I was 12 I easily passed for 16 or 17.
Moreover, in the environment in which the officers thought they were operating, 11- and 14-year-olds are all too often capable of lethal violence.
Eric Hines
So it's OK to presume guilt for anyone the police encounter in the search for a violent rapist, but not for the police who -- say -- handcuff everyone at an intersection for two hours while searching for him? That happened not long ago with regard, not to a rapist, but to a bank robber; we seemed to have a different attitude about it then.
I said I was fine with waiting on due process, so long as the policemen so accused were removed from the force. That is, as you pointed out, an administrative action; and they have no legal right to be on a team of police drug raiders. They have no legal right to be policemen at all. The due process to which they are entitled, in these matters, is rather less than when Constitutional rights are concerned.
There is actually a Constitutional right not to be deprived of life, liberty, or property without due process of law. Chaining someone up is depriving him of liberty. I don't think it should be done without due process, and due process does not consist of "because I said so, or I'll shoot you."
Once again, though, there's a strong division between those who believe that aggressive police tactics are necessary to protect public safety and order; and those who believe that these tactics are way beyond what a free society should tolerate from its government. I am very much in the latter camp. I don't see the huge public benefit of regular raids on private homes, the regular handcuffing of people for police convenience, and so forth.
Chaining someone up is depriving him of liberty. I don't think it should be done without due process, and due process does not consist of "because I said so, or I'll shoot you."
So what does it consist of? When can the police restrain someone or cart them off to jail?
Well, for example, I don't really have a problem with the handcuffing of the girls: I think it's a little bit of overkill, but on a charitable reason restraining them makes it less likely they will make the kind of sudden move that often seems to lead to accidental police shootings.
In this case, though, there has been a warrant issued; the police are wrong about which house they should be in, but there's been a formal process before the chains come out. There's a warrant issued against the house and its occupants that constitutes due process.
So it's OK to presume guilt for anyone the police encounter in the search for a violent rapist, but not for the police who -- say -- handcuff everyone at an intersection for two hours while searching for him?
You're conflating two entirely separate problems--and tacitly a third one.
The police certainly do have a right to confine violent suspects, take them into custody, and let a court then decide their immediate freedom or lack pending trial. The raid in question, I have no reason to believe from the evidence at hand, Riggs' tirades notwithstanding, was not carried out under legitimate probable cause. Rounding up everyone at an intersection to catch a (probably) nonviolent suspect has nothing to do with this.
The third one is the premise of regular raids on private homes. This also has nothing to do with the problem at hand--the alleged gun-pointing at children. This is a risk in any raid, whether those raids occur at high frequency or at some acceptable level above zero.
...so long as the policemen so accused were removed from the force...they have no legal right to be on a team of police drug raiders.
Guilt by accusation. Who needs a court? So much for due process.
...due process does not consist of "because I said so, or I'll shoot you."
Yes, it does, when there's probable cause, just as that 5th Amendment clause you cited indicates. Again, based on the evidence available, I have no reason to doubt that a court hadn't previously sanctioned the raid.
Eric Hines
In the case of your 'violent rapist reported in the neighborhood,' maybe the due process has to come on the back end. Those cases are relatively rare, though: generally the police show up too late to do anything but take a report. There's plenty of time to obtain an arrest warrant from the description, and thus to similarly limit the deprivation of liberty with due process.
If we are in a situation where there isn't time, the police shouldn't be handcuffing every person they meet in the hopes of catching the rapist. They should be rounding those people up into a posse to help them find the guy. Anyone who doesn't fit the description from the victim, rather than being chained, should be helping find the rapist.
That back-end due process needs to include some pretty significant protections for the people who do fit the description. I don't think that routine damages for anyone who proves to have been handcuffed without a front-end due process is out of order; it would serve as a limiting principle on the violation of the Fifth Amendment protections, a sort of reparation for the violation of your rights.
I realize we are in a government spending crisis, but this is one time I don't mind to spend a little money. The protection and preservation of those rights is the whole purpose of the government. That's what it's for. It shouldn't violate them except in extreme emergencies, and it should always make it good when it does.
No, Mr. Hines, "probable cause" is in the fourth amendment; and it relates to the obtaining of warrants. Once there's a warrant, due process has occurred.
Also:
I have a right to arrest a violent felon if I encounter him in the process of his felony. That's a back-end due process issue; the magistrate will determine whether I acted properly, and whether he was really guilty, and all that stuff.
But I'm in significant jeopardy if I don't do it right. That's as it should be: when we're in these cases of playing it fast, and sorting out the paperwork later, we need a severe limiting principle. That cuts down on the risk that the cases in which we allow exceptions will be allowed to grow big enough to swallow the cases in which, actually, real due process could happen first.
So it's OK to presume guilt for anyone the police encounter in the search for a violent rapist
Taking someone into custody is not "presuming guilt", Grim. It says nothing about guilt. That's what arraignments and trials are for.
... but not for the police who -- say -- handcuff everyone at an intersection for two hours while searching for him? That happened not long ago with regard, not to a rapist, but to a bank robber; we seemed to have a different attitude about it then.
It's a question of reasonableness. It's not reasonable to handcuff everyone at an intersection. They're not all suspects, nor is there any reasonable basis for restraining them. Personally I doubt it's reasonable to handcuff anyone not actively resisting the police.
And in fact, the police don't routinely handcuff people. I know my son doesn't. That's why it's news when these incidents happen. You can bet they don't make the news in real police states.
We're outraged because they're NOT the norm. That's a fact that I fear is getting lost here.
If we are in a situation where there isn't time, the police shouldn't be handcuffing every person they meet in the hopes of catching the rapist. They should be rounding those people up into a posse to help them find the guy. Anyone who doesn't fit the description from the victim, rather than being chained, should be helping find the rapist.
The police don't "handcuff every person they meet in hopes of catching the rapist", Grim.
Who controls your posse? Who protects innocent people from untrained hotheads? Or don't their rights matter?
Should the police have sent a posse after George Zimmerman? How well do you think he would have fared?
..."probable cause" is in the fourth amendment....
You're right narrowly; my logic was that probable cause is a necessary component to due process when that due can come before the act, and due process is a 5th Amendment requirement.
Eric Hines
Should they have sent a posse after the guy who called them asking them to come? Probably not!
Zimmerman was a member of the police's posse, actually. He was trained by the neighborhood watch program, and was in regular contact with the police about what he was trying to do to improve and bring safety to his neighborhood.
That case has a lot tragic around it, but the public/police partnership aspect isn't the problem with it. The execution -- so that Martin didn't know that Zimmerman was the neighborhood watch captain -- that was poor, but the concept is a good one. If you've got a neighborhood that's starting to turn bad, a partnership between the police and the citizens who are concerned about the changes is a great idea.
That also solves your question about who's in charge, and command and control. It's a good idea to work those issues out in advance, if you're in the kind of neighborhood where you've got serious crime issues.
You're right narrowly; my logic was that probable cause is a necessary component to due process...
Yes, I agree: necessary but not sufficient! The warrant that the 4th talks about is sufficient.
In cases where there's not time for a warrant, well, I've said what I have to say about that above.
To support Cass' argument, I'll go back to a late comment I made on Grim's 25 May post discussing a Patterico post about SWATting, which linked a map of botched raids nationwide:
It's a good post, Grim, and I really like the suggestion for dealing with falsely informing police to raid someone, but to be fair, I'm not sure this statement is really accurate:
"but things turn out otherwise so often", with your link to the map of botched raids at Cato institute.
I looked at that map for Los Angeles County, as I live here, and figured it would have a good sample, being such a large metro area. There were a total of seven incidents mapped in L.A. county, or involving L.A. county personnel. How many raids do you think have gone on in L.A. County in the last twenty two years? I'd guess thousands, at least (since it's not clear that this map was limited to SWAT raids- it did not appear to be from the stories I saw listed- in fact, it's most likely that the majority of these incidents were not involving the SWAT team).
And I later commented:
Following up, I had occasion to chat with a local SWAT officer from an agency in the greater L.A. area, and he confirmed for me that for a raid to occur, several things need to happen: A detective, after investigation, determines that a raid is necessary, and sends the request up to his Detective Sergeant for approval. From there, it goes to a judge for approval, and then also has to be approved by the SWAT commander for, among other things, the appropriateness of this task to the use of a SWAT team. So, for every raid, several ranking officers have approved it, and a judge. Consider also that the SWAT officers are going to make every effort to carefully examine the intel available, and to be correct in the determination of what the threats are and who and how to serve the warrant, or perform the raid, as their lives are in the balance.
I also asked if he knew how frequently raids occur, and he figured that at an agency like LAPD, SWAT probably at least serves warrants on a daily basis. That would be over 8,000 actions for them alone in a 22 year period.
I'm currently inclined to be of the opinion that erroneous/botched/unjust SWAT team actions are in fact exceedingly rare, and not the problem some make them out to be.
I am open to evidence on the contrary, if it’s to be had. All that said, I’d still like to see some means of liability burden under conditions of gross negligence, and hitting the wrong address would seem to me to be grossly negligent. I’m just not sure it’s the officers that enter the house to blame.
I also think this is a big part of it:
The protection and preservation of those rights is the whole purpose of the government. That's what it's for. It shouldn't violate them except in extreme emergencies, and it should always make it good when it does. -Grim
If there were better responses to mistakes made, beyond – ‘Sorry, wrong house’ and leaving, it might help alleviate some of the sense of abuse of authority.
I'd that that was one 11-year-old and one 14-year-old who may grow old and die without ever recovering whatever respect they may have had for cops or for the justice system in general. Good job, guys.
Douglas:
I don't remember having read that before; did I drop out of that discussion by the time you got to it? That's some good research.
I'm bothered by the idea of 8,000 SWAT-type raids a year in a free society -- let alone in one city of a free society -- even if they generally don't result in massacres. I'm not sure how compatible SWAT teams are with a free society.
However, it is good to hear that the process for determining such a raid is quite thorough. Also, I recognize that Southern California is something of a special case, not representative of the country at large.
SWAT teams are actually pretty expensive. My son was interested in going SWAT after he finished the local police academy. He ended up not doing it mostly because the local SWAT unit was almost never used (they called in state) so you had to go through a whole lot of rigamarole to sit like the Maytag repairman waiting for someone to call and need your services.
Grim:
I think what's missing in this discussion is exactly the kind of perspective douglas is trying to provide.
This reminds me a bit of the outrage over Dads who don't get custody (blissfully ignoring the rather critical question of how many even request it in the first place). You can't judge that 8000 number without context - what % of police calls, etc., how many people served (what's the current population of the US? Around 310 million?
What Douglas actually said was 8,000 actions, including warrant services--not 8,000 raids.
And the 8,000 occurred in Greater LA, which expansive though it is, doesn't encompass the US. The Combined Statistical Area for LA (perhaps a good simulacrum for Greater LA) has a population of somewhat under 18 million. That's one for every 4500, or so, persons in the area.
I think that's still a tad high, but I don't know the actual conditions in that area. In sedate bedroom suburb Plano, that would be a high ratio.
Eric Hines
Well, the other thing that's missing is a clear perspective on alternatives. The argument that Reason is floating is that most of these raids are unnecessary because they are a product of a drug war that could be significantly scaled down. If you legalize all but the most destructive drugs, you'd greatly reduce the money flow that leads to the kind of criminal gangs that SWAT teams are supposed to target (as opposed to serving warrants on family homes, say).
Thus, take that vast murder rate in Chicago. They've got all the SWAT forces in the world, so it's not succeeding in protecting society. The question is, if we did away with most of the drug war and reduced SWAT forces, would we have a better or a worse society? A safer or a less safe? That's hard to say, though my intuition agrees with Reason's analysis.
The argument about expense is part of the problem too. My understanding is that many of these raids on things like family homes arise less from what we might call 'military necessity,' and more from the fact that they need to justify the budget for the team. Insofar as that is true, they're putting people's lives at risk and -- I feel strongly about this part -- damaging the relationship between citizen and state by militarizing the police, which separates them from the population instead of leading to the kind of public-police partnerships that would create a more stable community. That's a high price to pay for reasons of budgetary justification.
So there's more at stake than "just how often are these things used?" There are also some issues of whether it's really appropriate for such things to exist at all, or only in special cases (like perhaps LA), and not in most.
So I appreciate the information, but to get to a final answer we need to know some other things as well.
Well, I'm never opposed to gathering more information.
I'm suspicious of "they didn't keep us safer" arguments. They're almost never based on solid statistics and anyway they're trying to measure a counterfactual. I think there's an argument to be made that there might be better ways, but that particular argument has always struck me as specious.
Grim, yes I did leave that pretty late in that thread.
The 8,000 number is a projection of one local SWAT officers reasoning that LAPD SWAT (They have multiple teams) must do at least one high risk warrant service a day- 365x22=8030. Of course, that's only SWAT and that's one warrant a day across the LAPD SWAT teams. there must be several thousand more actions by the SWAT teams over that time period, and as I pointed out, many of the raids that were on the CATO map seemed to me to not be SWAT actions, but either special unit (gang or narcotics or some such)actions or rank and file being used on a particular large scale mission. Not every raid involves 'para-military' units.
Mostly, I would just like to see more information before I commit one way or the other. I believe that there is a place for SWAT teams in our police forces, particularly in major metro areas, but I'm quite sure that there are actions that could be taken with less force or be done more carefully to avoid mistakes like 'wrong house'. Also, given that there are always going to be mistakes, I think it's important to have some level of negligence that opens an officer up to legal repercussions in the case of a botched raid, or at least offers the family of a 'wrong house' raid to get some recompense for their trouble.
Post a Comment