Sunday, January 03, 2016

SWAT Raids, Search Warrants, Perjury, and the Criminal Law

Two recent posts on the Volokh Conspiracy blog described a controversy over a no-knock SWAT raid authorized by a search warrant based on evidence of a visit to a gardening store and the presence of used tea leaves—described in the application for the warrant as marijuana leaves and stems—in the family trash. The first post criticized the court decision that prevented the victims from suing the police officers responsible, the second defended the decision.

The relevant facts appear to be:

1. The raid was part of “ 'Operation Constant Gardener,' basically a PR stunt in which the agency conducts multiple pot raids on April 20, or '4/20.'"

2. The basis for claiming the tea was marijuana was a field test known to produce a high rate of false positives—to frequently say something is marijuana when it isn't.

3. There was plenty of time to have done a more reliable test.

The judge's ruling dismissed the family's suit  on summary judgement, meaning that it held that even on the interpretation of the facts most favorable to the plaintiffs, they still had no case. The argument was that the police officers had no obligation to know whether or not the test for marijuana they were provided with was reliable, hence had no liability for holding a family at gunpoint for two hours while searching their house on the basis of a test known to be unreliable. 

It is not an absurd argument. But what it points at is the failure of a different part of the relevant legal system. 

The officer's affidavit included the statement:

“1/4 cup saturated marijuana plant material (leaves and stems)”

The material was used tea leaves, not an exotic substance that an American police officer would never have seen. In order to identify it as marijuana material, the officer would have had to be familiar with what marijuana looked like. In the words of the lab that later examined the material, “It does not look anything like marijuana leaves or stems.”

I think that meets the legal standard for a statement that the officer knew or should have known was false. A false statement on a sworn affidavit is perjury, a felony. My guess is that a felony conviction would impose a larger cost on a police officer than a successful civil suit for an illegal search.

This is one out of a multitude of cases in which a no-knock raid turned out to have been authorized by a search warrant based on false information. No doubt in some such cases the officer responsible for the application had made a legitimate error, but it is hard to believe that was the case in all of them. I have not yet seen a single news story about a police officer convicted of obtaining a search warrant on a perjured affidavit.

All crimes are, legally speaking, offenses against the state, not the actual victim. It is the state that controls prosecution. If you commit a crime which the relevant authorities approve of, you are unlikely to be prosecuted. If the relevant authorities did not approve of the use of a test that would produce evidence for marijuana whether or not it was there and thus authorize searches in violation of the requirements of the Fourth Amendment, they would not be using it. In a sufficiently high profile case federal authorities might prosecute state or local authorities for something the latter approved of and the former did not, but that is very much the exception, not the rule.

One solution to the weakness of criminal law as a way of disciplining state actors is to use civil law instead, since under civil law it is the victim, not the state, that chooses whether to prosecute. The higher the standard the court imposes on such suits, the less practical that is.

Another Volokh Conspiracy post on the case.


Power Child said...

The War on Drugs exists for several dumb reasons, the most important two of which are typically not understood or acknowledged by its opponents:

1) Drug prohibition is used to justify our global interventionism, forever.
2) Drug prohibition provides an easier way for the government to put people in jail than to convict them of serious crimes.

Whenever I hear about military conflicts and terrorism, I think of the first reason. Whenever I hear about unconstitutional SWAT raids, I think of the second.

Don't you think it's kind of a weird coincidence that Mr. and Mrs. Harte are both former CIA analysts?

Richard Ober Hammer said...

As in the case of the murder of Laquan McDonald, this abuse of power seems to be what we (or at least a few of us who have studied the origins of law) should expect from democratic government monopoly law. The police in a given neighborhood in America sometimes act like an invading army sent from the government of a foreign land. When the system empowers one set of people to vote and thereby decide what rules will be inflicted upon another set of people, men arrive with guns and humane details are overlooked. I have sketched glimpses of an alternate formation of law, for an audience I assumed to be libertarian, in a this piece.

Attempting to be a Skeptical Thinker said...

Volokh also ran a great series of articles about Judge Kozinski's paper on criminal justice reform.

As our legal system becomes more and more arcane, prosecutorial discretion becomes increasingly powerful and dangerous. Just look at what the executive's ability to appoint the prosecutors has done for us over the last 7 years. Name one significant figure in the current administration that has been prosecuted or even properly investigated for anything even though there is widespread evidence of fraud, cover ups, and outright criminality in multiple agencies.

I despair for the future. How will any future government actors ever be held accountable to anyone? Our basic system of checks and balances has been eroded to a tattered veil.

NeedleFactory said...

Is it possible for the victims to bring a civil case against the police? How large are the impediments to doing so?

Unknown said...

Attempting to be a Skeptical Thinker said: Just look at what the executive's ability to appoint the prosecutors has done for us over the last 7 years.

Ahem, that's Federal prosecutors. States often have direct elections for these posts - is there any evidence that trying looking good in the eyes of the electorate is any better ?

And of course DDF has drawn attention to places where Criminal prosecutions are not a state monopoly as for common law and many other crimes in England today.

Does it improve matters to be able to both prosecute and sue police for "misconduct in public office" ?

Bill Conerly said...

It would take an extraordinary set of circumstances for a district attorney to prosecute a police officer for perjury on a search warrant affidavit. That would be very harmful to the DA-police relationship. If the DA's goal is to look good as a crime fighter, getting into a fight with the police won't help. Only if the community were objecting would it make sense for the DA to prosecute. Of course, I'm assuming that the DA is more concerned about image than justice.

Laird said...

This case raises a host of issues:

1) Most of what people consider true "crimes" (malum in se, as opposed to malum prohibitum) are actually committed against real people. It is long past the time when we should have abolished the useless fiction that crimes are committed "against the peace and dignity of the state." A large portion of our criminal laws should simply be abolished, and the individuals harmed should prosecute the cases in a hybrid criminal/civil proceeding (i.e., one in which it is possible to obtain restitution or other monetary damages as well as impose jail time). This would eliminate much of the evil of prosecutorial discretion.

2) Perjury is one instance of a crime actually committed against the state. In a case such as this, where the police office clearly had to be perjuring himself whatever the test results (loose tea leaves look nothing like marijuana leaves, as any police officer with the seniority to be seeking a warrant would know), the judge should issue a perjury citation sua sponte. After all, it is he who was lied to, and if he has any respect for the dignity of his court he should be highly put out by it. If he directs a prosecutor to bring such a case, that should insulate the prosecutor from backlash by police officers.

3) An individual police officer shouldn't necessary be expected to know whether a specific test gives a high rate of false positives. But his superiors, those who make the decision as to which tests to employ, should know this, and should be held accountable for their decision to continue using a test known to be faulty. The suit (or at least one suit) should be against them individually.

4) There is no basis in the constitution, statutory or common law (to my knowledge) for the doctrine of police immunity. It is wholly court-fabricated. It should be abolished. Police officers should be as accountable for their actions (under a standard of reasonableness appropriate for the job) just as is anyone else. Courts need to stop codding them.

David Friedman said...


You might be interested in a talk I have given in various places under the title "Should We Abolish the Criminal Law." You can find recordings of two versions at:

Eric Rasmusen said...

There is a very strong case to be made for private criminal prosecutions. If a citizen is allowed to prosecute a crime, he will not have a strong incentive ordinarily since he would get no reward--- presumably the fine would still be paid to the state, and there would need to be a rule disallowing settlements without tight scrutiny by the judge to avoid collusive prosecutions for sweetheart deals. But some people would prosecute out of public spiritedness or thirst for vengeance.

My lawsuit against Citigroup for back taxes is an example of a citizen going after malefaction tolerated and encouraged by the government. I have standing due to a special New York statute. See