Chris0nllyn
Well-Known Member
In May 2005, police in Cambridge, Md., received an anonymous tip that there was drug activity going on in the duplex at 408 High St. (Yes, that’s the real 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 probable cause 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 raid took less than a minute.
They initially claimed that they pounded on the door and loudly announced themselves two times before taking a battering ram to the door. But the residents of the downstairs apartment, which was raided at the same time, testified that they never heard a knock or an announcement. Moreover, the outer door to Cornish’s apartment showed no signs of having been smashed open with a ram. Both the trial court and the appeals court that ruled against Cornish’s father acknowledge that the police violated the knock-and-announce rule and that they lied about doing so.
That still wasn’t enough for Cornish’s father to win damages. That’s because the majority found that even though the police violated Cornish’s constitutional rights by failing to give him the opportunity to come to the door and let them in peacefully — as required by centuries of common law — Cornish’s death wasn’t the fault of the police officer who shot him. Instead, the majority ruled that Cornish is responsible for his own death, because according to police, he should have known that they were the police when he attacked them with a sheathed knife, and his act of knowingly attacking the police after they had entered his home supersedes their failure to knock and announce.
It is an utterly absurd ruling. Police don’t raid homes at 4:30 a.m, with battering rams in order to let suspects know that they’re the police. They raid homes at 4:30 a.m. with battering rams for the very purpose of disorienting and confusing suspects so that they can take them by surprise. You can’t simultaneously argue that confusing and disorienting a suspect is necessary to protect the safety of police officers, and that the same suspect you’re trying to confuse and disorient should be able to wake from a sleep, process what’s going on around him, immediately discern that the armed men who have just broken into his home are police serving a warrant and not criminals there to do him harm, and that should he make an error in judgment, he alone is responsible for the consequences — whether it’s the end of his own life, or his killing, or the injuring of one of the police officers.
Actually, it may not be logically consistent, but you can make both arguments. The police do it all the time. And the courts back them up.
Harris points out that this was particularly true of Cornish.
Cornish was not some drug kingpin who might be on notice as to the possibility of an unannounced police raid. On the contrary, Cornish enjoyed a cordial relationship with the police; one of the Officers testified that while on duty he would occasionally stop by Cornish’s building and share a Pepsi with Cornish on the front porch. And as noted above, as to Cornish, this was a case about trace amounts of marijuana found in a trash rip, which ultimately led to the seizure of a small quantity of marijuana in Cornish’s apartment — not exactly the stuff of no-knock nighttime SWAT raids.
There’s a huge double standard at play here in the sort of composure, good judgment and decision-making the courts demand during these raids. That is, they demand all three from the people on the receiving end of the raids, and none of the three from the police.
Those are precisely the circumstances — “tense, uncertain, and rapidly evolving” — under which we give police officers the benefit of the doubt when it comes to their perceptions …
In evaluating the use of force by officers, we make allowances for the fact that such situations can be exceptionally confusing and fast-moving, with officers required to make split-second judgments under suboptimal conditions.
In the context of a rapid-deployment and high-pressure nighttime raid, police officers cannot be held to “the 20/20 vision of hindsight,” (Graham, 490 U.S. at 396) and must instead be judged under a more forgiving standard.
Indeed, the Officers here argued as much to the jury, in defending against Kane’s claim for excessive force. According to the Officers, for instance, events in the apartment were so fast-moving and conditions for observation so poor that they could not discern — nor be expected to discern — that what Cornish held in his hand was a knife in a sheath and not, as they thought at the time, an unsheathed knife, or perhaps a machete or a pipe. The jury apparently credited that account, and decided the excessive force claim against Kane. There is no reason I can think of that the same jury could not apply the same standard to Cornish — who, unlike the Officers, had the benefit of neither training nor advance warning when he found himself caught up in the tumult of a military-style nighttime raid — and assume that Cornish, too, would be unable to exercise the powers of careful discernment that could be expected under less fraught circumstances.
The two-judge majority simply trusts the police when they say that Cornish had to have known they were law enforcement before he attacked them with a sheathed knife. But very little about that scenario makes sense. Why would a guy with only a small amount of pot knowingly take on a heavily armed SWAT team with a sheathed knife? That would seem to be the actions of someone trying to scare off a criminal intruder. One of the officers’ answer to that question: “People do irrational things.”
First, note how long it took to get even this far in this case. It has now been almost 10 years years since Cornish was killed. And I suspect Cornish’s father will appeal.
Second, in the 2006 case Hudson v. Michigan, the Supreme Court ruled that even when police violate the knock-and-announce rule during a raid, the exclusionary rule doesn’t apply. That is, the police can still use any incriminating evidence they may find after entering against the suspect at trial. The court had been watering down the knock-and-announce requirement for decades. This was a death blow. The ruling meant that even when police violate the already watered-down rule, there will be no real consequences.
http://www.washingtonpost.com/news/...odies-everything-thats-wrong-with-drug-raids/
