Shot Dead by Cops for a Trace of Pot: Is This Still America?

This would have been unimaginable in the America of my youth. Now, it’s approved by the federal courts:

Earlier this month, a three-judge panel from the U.S. Court of Appeals for the Fourth Circuit issued an appalling decision in a lawsuit stemming from a fatal 2005 drug raid in Maryland. In fact, the opinion encapsulates everything that’s wrong with sending militarized police barreling into homes to serve search warrants on people suspected of nonviolent, consensual crimes.

Here’s what happened:

In May 2005, police in Cambridge, Md., received an anonymous tip about drug activity going in the duplex at 408 High St. (Yes, that’s the actual name of the street.) They did a trash pull and found what they claimed to be two plastic bags, one from each apartment, that contained marijuana residue. That’s it. That’s the all probable cause they had for what happened next.

At 4:30 a.m. on May 6, SWAT teams from the Cambridge Police Department conducted simultaneous raids on the two apartments. According to the police, during the raid on the upstairs apartment, resident Andrew Cornish emerged from his bedroom carrying a knife, which was still in its sheath. The police say Cornish then confronted them, at which point one of the officers shot Cornish in the face and forehead. Cornish died. According to the court, the police found “a small amount of marijuana” in the apartment. By the officers’ testimony, the entire raid took less than a minute.

Cornish’s father, Andrew Kane, filed a lawsuit. After a lot of pretrial procedural motions, a federal jury finally ruled in Kane’s favor in December 2012, awarding him $250,000. The police and city appealed. And last month, by a 2-1 vote, the Fourth Circuit panel overturned the jury’s award.

Conservatives really need to rethink their knee-jerk support of the police and other authorities. And the entire federal court system needs to remember that it is a creature of Congress, and can be dissolved or abolished at Congress’s behest. Here’s the text of Article Three of the Constitution:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Back to the case at hand:

The courts long ago decided that dangerous, punishing SWAT-style raids to search for pot — even when there is no evidence of distribution — are reasonable under the Fourth Amendment. A lawsuit arguing otherwise won’t last long.

But it’s worth considering what it means for this to be settled law. In the 20 or so years leading up to the American Revolution, the British crown began stationing troops in the streets of Boston to enforce England’s tax and import laws. The British troops and enforcement officers were armed with writs of assistance, or general warrants that gave them broad powers to search colonists’ homes. They didn’t need to establish probable cause, or even specificity as to a person or residence. The abuse that came with those warrants made Boston a hub of revolutionary fervor, and memories of that abuse are why the Founders created a Fourth Amendment after the war.

But while today’s search warrants require both specificity and some evidence of wrongdoing, in many ways the colonists had more protections than we do today. For example, the British soldiers could serve warrants only during the day. And they were always required to knock, announce themselves, announce their purpose and give the resident time and opportunity to come to the door to let them in peacefully. This was all in observance of the Castle Doctrine, or the idea that the home should be a place of peace and sanctuary, and that it should be violated only in the most extreme circumstances. Even then, the Castle Doctrine had a long and rich history in English common law, a tradition that carried over in the United States until the Supreme Court began chipping away at it in drug cases, beginning in about the 1960s.

Today, of course, authorities can break into homes without knocking. They can conduct raids at night. In theory, we’re today protected by the requirement that authorities show probable cause before serving a warrant, but given the deference judges give to police and prosecutors in much of the country and the boilerplate language you’ll often find on warrant affidavits, you could make a good argument that in many jurisdictions the probable cause protection is little more than a formality. In any case, if the Fourth Amendment is due to the Founders’ offense at British soldiers forcibly entering homes in daylight hours after knocking and announcing to search for contraband, it seems safe to say that the Founders would be appalled by the fact that today, dozens of times each day, heavily armed government officials break into homes, often at night, without first knocking and announcing, in order to conduct searches for contraband.

Just think: if the Choom Gang had been busted and roughed up like this 40 or so years ago, none of this would be happening today.