by Radley Balko
As the police raided apartment B, Det. Sgt. Sweeney somehow mistakenly fired his .223-caliber rifle into the floor. The bullet ripped through the floor, then through the ceiling of the apartment below, where Heyward Dyer was standing, holding his son. The bullet pierced Dyer’s skull, killing him instantly. As his father fell, the infant Francis Dyer went crashing to the floor.
From press accounts, the police never made clear why a police officer from Vernon went along for a raid in Whittier, and why he was carrying a rifle when neither the California Bureau of Narcotics—which directed the raid—nor the Los Angeles County Sheriff’s Department allowed it. Police agencies were (and still are) also supposed to notify any agency with overlapping jurisdiction during such raids, in part because local departments—especially in small towns—tend to have local knowledge. One example would have been knowing that this apartment complex had an odd way of assigning addresses. No such notification ever happened. The police did arrest one man in apartment D for possession of “two red capsules” and “two white capsules” believed to be illegal narcotics, along with 150 marijuana seeds.
By 1969, California was one of twenty-five states that had a no-knock law. Of course, Los Angeles County was also where Ker v. California had originated, the case in which the US Supreme Court six years earlier had (mostly) given its stamp of approval to the “destroying evidence” exception to the knock-and-announce rule, and William Brennan had warned of the consequences of such a dangerous precedent.
Though Nixon wouldn’t officially “declare war” on drugs until 1972, the modern drug war effectively began with his inauguration in 1969. It seems likely, then, that Heyward Dyer was the modern drug war’s first innocent fatality. There would be more. Many, many more.78
FIVE YEARS OF UNREST AND INCREASINGLY MILITARIZED police actions culminated with America’s very first SWAT raid in the final months of the 1960s. The December 1969 raid on the Los Angeles headquarters of the Black Panthers was also about as high-profile a debut for Daryl Gates’s pet project as he could possibly have imagined. Practically, logistically, and tactically, the raid was an utter disaster. But in terms of public relations, it was an enormous success.
The Black Panther Party hit its peak in 1969. Started in Oakland just three years earlier by Huey Newton and Bobby Seale, the activist group’s mix of Marxism, militance, and black nationalism quickly found a following in the counterculture. Panthers often espoused their revolutionary rhetoric and illustrated their “by any means necessary” motto by toting loaded rifles and handguns during public protests and demonstrations. It wasn’t just talk. In a little over three years, nine police officers and ten Panthers had died in police-Panther confrontations across the country. By 1969, the group was ten thousand strong and had become a bright, blinking flash point on the radar of police in every city in which it had established a presence. FBI director J. Edgar Hoover had made the Black Panthers a top priority and, naturally, had publicly “declared war” on them.79
There are conflicting accounts of the events that led up to the Panther SWAT raid. According to Gates’s autobiography, sometime before the final confrontation, LAPD captain Ted Morton received a complaint from a woman about noise coming from a loudspeaker in a building occupied by the Panthers. When Morton went in to investigate, he was greeted with several guns and warned to leave immediately. Morton returned to the police station and wrote up a report, and within a few days Gates and the LAPD brass began drawing up plans to raid the building on charges of assaulting a police officer with a deadly weapon.80
Based on interviews with several Black Panthers who were in the building the morning of the raid, as well as with LAPD SWAT officer Patrick McKinley, journalist Matthew Fleischer offers a different narrative:
On November 28, 1969, more than 250 police officers surrounded the Los Angeles [Black Panther] headquarters during a community meeting, sealing the facility off in what Panthers now call the “test run.”
On December 4, Fred Hampton, deputy chairman of the Illinois chapter of the Black Panthers, was shot to death at point-blank range while he was sleeping, during a raid by the Chicago Police Department. The incident drew international outrage. Back in LA, there wasn’t a Panther alive who didn’t think a similar raid by the LAPD was coming their way.
They were right. As it turns out, the night of the test run, police claimed to have seen three Panthers—Paul Redd, “Duck” Smith and Geronimo Pratt—in possession of illegal firearms. The LAPD secured an arrest warrant for the three, as well as a search warrant for the 41st and Central headquarters and two known Panther hideouts.81
By all accounts, the raid began at about 5:30 AM on December 6, 1969. The Black Panther building was well armed and well fortified. Gates and his SWAT team had put together blueprints of the building from intelligence they had collected from informants. Unfortunately, the blueprints critically misplaced a massive pile of dirt that the Panthers had built while digging out escape tunnels. The police had the dirt pile off in a corner. It was actually directly behind the back door, the same door through which the assault team was to make its surprise entry.82
When they tried to open the back door, the dirt pile prevented them from entering. They’d have to go through the front door. As they did, a helicopter swarmed overhead, and other officers began scaling the sides of the building. By plan, Gates’s SWAT team was supposed to have made entry and secured the inside of the building by this point. Instead, a Panther lookout on the roof screamed, “They’re here!” to his confederates inside. By the time the SWAT team breached the front door, the Panthers were ready and greeted them with a storm of bullets. Three officers went down.
Even worse, the SWAT team had entered an alcove with no escape except through the door they had just entered. Fortunately, the gunfire had started immediately, which let the officers know their cover had been blown. They dragged out their fallen colleagues and retreated. As Fleischer puts it, “If the Panthers had held their fire for a few moments more, the entire SWAT team would have made it into the alcove—and been shot to pieces.”83
Over the next three hours, LA police and the Black Panthers exchanged over five thousand rounds in a crowded city setting. The entire neighborhood was evacuated, and the surrounding streets were shut down just before the morning rush hour. Los Angeles police chief Ed Davis was in Mexico at the time, making Gates the acting chief. After a couple hours of gunfire, Gates and his SWAT officers came up with a new idea—they would use a grenade launcher on the building. Gates contacted the Marines at Camp Pendleton. He was told that, at the very least, he’d need permission from the Department of Defense. He’d probably also need it from the president. Gates writes in his book, “I called Mayor Sam Yorty next and asked if he would make the call to Washington. My words seemed unreal. Anytime you even talk about using military equipment in a civil action, it’s very serious business. You’re bridging an enormous gap.”84
Yorty agreed, and within an hour the Department of Defense gave Gates permission to use a grenade launcher on the Panthers building. It’s a remarkable anecdote, not because Gates sought permission to use the weapon, or even because the Pentagon gave it to him. Given the circumstances, it may not even have been all that unreasonable a request. The story is remarkable because of the procedures, the caution, and the trepidation that went into procuring the grenade launcher. About twenty years later, the Pentagon would begin giving away millions of pieces of military equipment to police departments across the country for everyday use—including plenty of grenade launchers.
The accounts of the raid again differ about how it ended, but after hours of gunfire the Panthers finally waved a white flag to surrender. In the end, four Black Panthers and four LAPD officers were wounded. Somehow, no one was killed. Six Panthers were arrested, booked, charged, and jailed. If the objective of the SWAT team was to serve the warrants and make the arrests with no fatalities, then the raid was a success. But of course it was far from that. The SWAT officer McKinley summed up t
he raid to Fleischer. “Oh God, we were lucky. . . . I’m extremely proud of what we did that day. We got our targets and no one died. But oh God, were we lucky.”
Gates’s surprise tactics had one unexpectedly deleterious effect: they gave the Panthers a plausible argument of self-defense. The Panthers awoke to men with guns breaking down their door and firing bullets into the walls. Paramilitary police tactics were new at the time, and the mixed-race jury apparently found them pretty alarming. All six Panthers were acquitted of the most serious charges, including conspiracy to murder police officers. That again is a stark illustration of how much standards and expectations have changed since then. It’s nearly unthinkable that a self-defense claim under similar circumstances would be successful today. Indeed, several subjects of these sorts of raids have made that argument, and they almost always have failed.
Though it was only by sheer luck that the bumbling raid wasn’t a bloody disaster, and the tactics themselves ultimately contributed to acquittals of the very dangerous suspects the entire operation was designed to put in prison, the country’s maiden high-profile SWAT raid was also a massive, uncompromising show of force against an organization that was widely feared and despised by politicians, law enforcement officials, and most Americans whose politics fell outside the far left. Activists and editorial boards raged, but the Black Panther raid was a public relations triumph. Within five years the Panthers would splinter, fizzle, and for the most part evaporate. SWAT would grow, spread to other cities, and become a pop culture phenomenon.
By the time Gates died in 2010, the institution he started had spread to nearly every city in the country, to most federal agencies, to most medium-sized towns, and even to small and tiny towns. The wisdom of limiting SWAT assaults to genuine emergencies was long gone. Across the country, the tactics Gates had conceived to stop snipers and rioters—people already committing violent crimes—had come to be used primarily to serve warrants on people suspected of nonviolent crimes.
The Numbers
Percentage of Americans who thought the Supreme Court was too soft on criminals in 1965: 48 percent
. . . in 1968: 63 percent
. . . in 1969: 75 percent
Percentage of Americans in 1968 who disapproved of interracial marriage: 75 percent
Percentage of Americans who supported the Chicago police after the 1968 Democratic National Convention riots: 56 percent
. . . of Nixon supporters: 63 percent
. . . of Wallace supporters: 71 percent
. . . of Humphrey supporters: 44 percent
Percentage of Americans who supported the death penalty in 1966: 42 percent
Percentage who supported the death penalty in 1969: 51 percent
Percentage of parents who in 1969 said they would turn in their own kid for using drugs: 42 percent85
CHAPTER 5
THE 1970S—PINCH AND RETREAT
Drug people are the very vermin of humanity. They are dangerous. Occasionally we must adopt their dress and tactics.
—MYLES AMBROSE, HEAD OF NIXON’S OFFICE OF DRUG ABUSE AND LAW ENFORCEMENT
Sam Ervin was an unlikely civil liberties hero. Known for his bushy, high-arching eyebrows, the avuncular senator from Morgantown, North Carolina, was the prototype backwoods bumpkin who passed himself off as “just a simple country lawyer”—right before unleashing the devastating argument that crushed his opponents and won the day. In a thick, jowly drawl, he’d dispense folksy anecdotes, Bible verses, and righteous indignation—and in the next breath drop quotes from Shakespeare, Aristotle, Kipling, or Thomas Wolfe.
Born in 1896, Ervin was a decorated World War I veteran who earned a Silver Star, two Purple Hearts, and a Distinguished Service Cross during his commission as an infantryman in France. When he returned home, the whip-smart veteran quickly ascended the ranks of North Carolina politics. When Democratic senator Clyde Hoey died in 1954, Ervin was sitting on the North Carolina Supreme Court. Gov. William Umstead asked him to fill the vacant seat, and he accepted. Sam Ervin would remain a US senator for twenty years.
What many would come to see as contradictions or surprises in Ervin as a public figure were in fact his way of balancing a collection of values drawn from his faith, his Constitution, his heritage, the mores and traditions of his region, and his scholarship. Though a deeply religious man, for example, Ervin successfully led an effort in the North Carolina legislature to defeat a law that would have prohibited teaching evolution in the state’s schools. Ervin found the law embarrassing.1
Though Ervin was a Democrat, he and Nixon were often on the same side of the 1960s culture wars. Ervin largely supported Nixon’s efforts in Vietnam. He also opposed Brown v. Board of Education (though he’d later change his mind) and the 1964 Civil Rights Act. He was a signatory of “The Southern Manifesto,” which accused the US Supreme Court of overstepping its authority on integration and breeching state sovereignty. Ervin even reversed course on integration at about the time the Nixon administration made desegregating public schools a Justice Department priority.
Indeed, by the time Nixon ran for president in 1968, Ervin appeared to be precisely the sort of God-and-country, law-and-order Southern Democrat Nixon was hoping to court with his campaign. The two also shared a contempt for the Warren Court. In the 1957 case Mallory v. United States, the Court ruled as inadmissible the confession of a subject who had been interrogated for seven hours before he was notified of his rights or given a preliminary hearing.2 In response, Ervin took to the floor of the US Senate to defend the integrity of law enforcement officers. Ervin complained that the courts had perversely decided that criminals need protection from law enforcement more than society needs protection from criminals.3 It was a speech that Nixon himself might have given on the campaign trail ten years later.
The Nixonites, then, would be struck dumb when Sam Ervin emerged in the early 1970s not only as Nixon’s most formidable Watergate nemesis on Capitol Hill, but also as the angriest, loudest, and most powerful critic of Nixon’s crime policy. Even more surprising, he would beat them. Thanks to Ervin, the Castle Doctrine stayed afloat for about another decade before being submerged by the 1980s war on drugs.
ATTORNEY GENERAL JOHN MITCHELL AND HIS SUBORDINATES began their big legislative crime push in the summer of 1969. They found plenty of willing help on Capitol Hill. In both chambers, Nixon administration allies and crime hawks introduced a flurry of bills containing sweeping new provisions. When Stanford law professor and criminologist Herbert Packer asked the Justice Department just how many crime bills there were, one official replied in a letter, “I leave it to you to make the count.” In an October 1970 essay for the New York Review of Books, he tried. Packer counted twelve bills that came directly from the White House plan and eight more introduced independently that the White House supported. Packer counted at least four Senate and five House committees claiming jurisdiction over some version of a crime bill—and that wasn’t counting the appropriations committee in each chamber.4 And because the two bodies wouldn’t pass identical versions of any bill, there would also be a slew of conference committees to sort out all the differences. It seems unlikely that all of this overlapping legislative activity was planned, but it had the benefit of making any organized opposition to the bills rather difficult.
The no-knock raid came up in two bills. The first was the Omnibus Crime Control Act, which authorized no-knock raids, preventive detention, expanded wiretapping, night raids, and other powers in federal investigations. That bill was also split up. The portion including preventive detention hit the House Judiciary Committee in October 1969, while another version headed to the same committee in the Senate, chaired by Ervin.
When the bill hit Ervin’s desk, he couldn’t believe what he saw. The senator fired an early shot across the president’s bow when he called the preventive detention proposals “facile and desperate” and “tyrannical” and added that the very idea of eliminating bail “repudiates our traditional concept of liberty.�
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The Nixon administration was gobsmacked. Ervin had supported the Republicans’ election-year crime package just a year earlier. He was an influential voice in the Senate, especially given his position on the Judiciary Committee. They were counting on his support, and he had just lashed out at the centerpiece of their crime strategy.
The White House regrouped and decided instead to put its initial push behind the crime bill aimed specifically at Washington, DC. No-knock raids were in that bill, as was preventive detention. The bill also eliminated probation and suspended sentences for some crimes, imposed mandatory life sentences for others, and broadly expanded wiretapping authority. The bill allowed police to conduct on-the-spot urinalysis tests during drug raids, allowed them to seize anything they found in a raid (they had been limited to seizing only the items they had listed in the search warrant affidavit), and removed the restriction requiring police to be “certain” that the evidence they were looking for would be found before they could raid a home at night.6
Since Nixon and Mitchell were most interested in quickly accumulating legislative victories on the law-and-order issues that had won them election, the major advantage of the DC bill was that, at least early in the process, it could be routed around the unexpected obstacle of Sam Ervin and his Judiciary Committee. Instead, the Washington bill began at the House and Senate committees that oversaw the District of Columbia. In the House, that committee was chaired by Rep. John McMillan, a good-ol’-boy conservative Southern Democrat who had once sent a truckload of watermelons to the black mayor of Washington, DC. He’d be an ally.