by Radley Balko
After the shoot-out, the LAPD was flooded with letters, as were city newspapers. The letters ran about five-to-one in favor of the police, with praise for the SWAT teams in particular. Chris McNab, a prolific author of books on police and the military, writes that after the SLA shoot-out, “SWAT was now on the public map, most viewers being enthralled by its toughness, others being appalled.”84
Gates himself writes:
One thing was certain. That night, SWAT became a household word throughout the world. They were intrepid; they were brilliant in their deployment; their execution was flawless. Soon, other law enforcement agencies began mounting their own SWAT teams. The whole nation had watched the shootout—live, on network TV.
He concludes, “Clearly, SWAT had arrived.”85
EARLY IN THE MORNING OF FEBRUARY 24, 1975, OFFICER Robert Duran and his partner, Officer Jim Street, were cruising in their squad car. A call came in about a potentially violent domestic disturbance. “Lovely,” Duran said. “They’re at each other’s throats already.” He pulled the car up to the intersection of the reported dispute. Nothing to speak of. “Quiet as a tomb,” Duran said, forebodingly. “Are you sure we got the right number?” The next day would be Duran’s birthday. His pretty wife was pregnant with their third child. All was right with the world. Then a shot rang out. Then several more. The two officers were caught in a deadly triangle of three snipers. Duran went down.
Street held the snipers at bay until the SWAT team could arrive. But by the time SWAT captain Hondo Harrelson and his team could scramble to the scene and ascend to the rooftop where one of the snipers was perched, all three gunmen had already left their positions and met back up on the street. Harrelson could only watch in anger as the assassins hopped into a gold Ford Maverick and sped away.
Sgt. Deacon Kay jooined his colleagues on the rooftop.
“The call was a phony, just like all the others,” Kay said to Harrelson. “Ambush. Cold-blooded assassins. But why?”
“Because of the color of their skin,” Harrelson replied. “Not because they’re black or brown or white. But because they’re blue.”
And so opened the first episode of the ABC drama S.W.A.T., a cheesy, violent (for the time) melodrama from producers Aaron Spelling and Leonard Goldberg. Just eight years earlier, SWAT had been nothing more than a thought bouncing around in Daryl Gates’s head. Now, thanks to a series of high-profile raids climaxing with the 1974 rescue of heiress Patty Hearst from the Symbionese Liberation Army, the concept had entered the mass consciousness. Gates’s idea was now a prime-time network television show with an audience of millions. The show was set in a large, unnamed California city that vaguely resembled Los Angeles. Former LAPD SWAT officer Richard Kelbaugh was a technical adviser for the show. The first episode followed Hondo Harrelson as he recruited Street, Luca, and others for a second SWAT team to be run out of the “Olympic” division of the police department—all while also hunting down the ambushing cop killers (played by a not-at-all-intimidating trio of middle-aged white guys who delivered lines like, Man, I just want to ice some pigs!). Over the course of the first season, Hondo’s new SWAT unit took on a suspiciously Manson-like cult leader and mass murderer, mob assassins trying to kill a former associate before he could testify before a Senate committee, a militant leftist group that had taken a professional basketball team hostage, an assassin from India sent to kill a US senator by infecting him with plague, terrorists who took a Nobel Prize–winning scientist hostage in a plant loaded with explosives that could eradicate half the city, and—in his toughest battle yet—a pretty young journalist sent to profile Hondo who didn’t really like cops. Cops, she said, are “a necessary evil, but more evil than necessary.”
The first season did well, and ABC ordered a second. Milton Bradley soon put out a S.W.A.T. board game. Kids could take their sandwiches to school in S.W.A.T. lunch boxes. There were S.W.A.T. action figures, View-Master sets, jigsaw puzzles, and die-cast miniatures of the S.W.A.T.-mobile. The show’s theme song, an uptempo instrumental by the funk-disco band Rhythm Heritage, was released as a single in 1976. It sold one million copies and briefly hit number one on the Billboard Hot 100. When the second season of S.W.A.T. was set to premiere, Hondo Harrelson made the cover of TV Guide.
SWAT had hit the pop culture.
AT THE SAME TIME, REAL SWAT TEAMS WERE SPREADING throughout the country. According to a New York Times investigation published in July 1975, by the middle of the 1970s the number of SWAT teams in the United States had grown to around five hundred. Criminologists were concerned. “It is the kind of thing that quickly catches on in police departments because of the pressure to be up to date without any knowledge of what they’re actually getting into,” said Marvin Wolfgang, director of the Center for Studies of Criminology and Criminal Law at the University of Pennsylvania. Someone the Times identified only as “a nationally-known police expert” added, “It reminds me of the nineteen-thirties when some smart salesmen went around the country selling submachine guns to every police department on the theory that they were going to have a shootout with John Dillinger some day.”86
In its survey of police departments, the paper found that in large cities SWAT teams were usually deployed only in emergency situations and that they tended to perform professionally and skillfully, using their extensive training to deescalate violent situations, often successfully. But smaller towns and suburbs were adopting the SWAT idea too, or at least some version of it. And in many communities SWAT teams and similar units were mostly used to bully protest groups, counterculture enclaves, and minority activists.
Some police officials feared that the SWAT trend, particularly in smaller cities and towns, would succumb to what the philosopher Abraham Kaplan called “the Law of the Instrument”: when you’re carrying a hammer, everything looks like a nail. “There are some cops who want to solve all society’s problems with an M-16,” one police chief told the paper. “Some of these men have lost perspective of their role in society and are playing mental games with firearms. . . . And if you set yourself up to use heavy firepower, then the danger exists that you will use it at the first opportunity, and over-reaction—the opposite of what the [SWAT] concept is about—becomes a real danger.”87
Big-city SWAT teams were getting training in paramilitary tactics and weapons, but that training was balanced by an emphasis on negotiation and deescalation and the use of violence only as the last possible option. In the smaller agencies around the country, not only did the SWAT team not get that sort of training, but the teams were staffed by part-timers, usually cops whose full-time jobs were more conventional police work. The risk was that the entire police department could succumb to a culture of militarism. In some quarters, it was already happening. Within a decade, the SWAT proliferation would accelerate. The emphasis on deescalation would all but disappear. Soon, just about every decent-sized city police department was armed with a hammer. And the drug war would ensure there were always plenty of nails around for pounding.
TO INFILTRATE THE SAN JOSE, CALIFORNIA, CHAPTER OF Hell’s Angels, Russ Jones stopped cutting his hair, grew a beard, sported chains and denim, and rode a Harley. He had developed a particular knack for building methamphetamine cases against motorcycle gangs. His undercover getup was so good, in fact, that he’d twice been pulled over and searched, once by the state police and once by one of his colleagues at the San Jose Police Department. The state cop even roughed him up a little. He never did figure out that Jones was a fellow cop. When Jones had accumulated enough evidence to wind down his 1973 investigation of the Hell’s Angels, he cut his hair, trimmed his beard, and then met with a deputy district attorney to sort out what charges to bring against whom.
After several days of planning, Jones held a 4:00 AM briefing the morning of the raids with members of his narcotics team, as well as a few men from the ATF and the FBI. Jones had also specifically asked a lieutenant in the department to send along some uniformed officers to help with the warrants. �
�We had always sent uniformed officers when we served search warrants, so the suspects clearly and unquestionably knew we were police,” Jones says.
When the San Jose backup detail walked in, Jones was startled. “There were all these guys in SWAT gear. Dark overalls, watch caps, all of that. Daryl Gates’s SWAT team idea had started to spread across the state, but that was my first interaction with ours, which they called MERGE. They looked like they were about to storm a hostage situation.”
Jones approached the lieutenant. “What is this?”
The lieutenant replied, “Our new uniform.”
Jones told the lieutenant to have the MERGE team change into regular uniforms, or he’d just pull some beat cops off the street when he neared the Hell’s Angels hangout. The tactical getups were inappropriate.
“He was angry as hell,” Jones says. Jones had planned to serve the search warrants as he always had—by walking up to the door, knocking, announcing who he was and why he was there, then waiting for someone to answer.
“I’ve investigated some tough people. A lot of drug dealers, a lot of gangsters. I never had a case where knocking, announcing, and waiting for someone to come to the door created a problem,” Jones says. Now retired, Jones’s two decades of experience as a drug cop have since turned him into a vocal critic of police militarization and the drug war in general.
“I was already concerned with this militarizing of cops in San Jose. I don’t recall ever using a ‘no-knock’ warrant in my career,” Jones says. “But when I got to DEA, I noticed a slow progression in that direction. Guys would say, ‘Oh, I heard a toilet flush,’ or, ‘I heard someone running in the house,’ which they’d use as an excuse to break in after knocking instead of waiting for someone to answer. Eventually, the pause between the time they’d knock and the time they’d break down the door was so short that they weren’t giving anyone time to get to the door to let them in—even if the suspect wanted to. And most of them did. I guess after I left the task force, they got to the point where they’d sometimes just not bother knocking at all.”
The MERGE lieutenant eventually backed down and told his team to change into regular police uniforms. They served the Hell’s Angels warrants by knocking, announcing themselves, and then waiting to be let in. They didn’t break down a single door. The suspects went peacefully. And the search turned up plenty more evidence of a methamphetamine operation.
Later, Jones’s supervisor tracked him down back at the office. The MERGE lieutenant had complained. Jones explained his position. His boss seemed to agree, but added, “You won the argument this morning, but you’re going to lose the battle. These guys got new toys. They want to use them.”88
BY THE SECOND HALF OF THE 1970S, THE LAW-AND-ORDER hard-liners had temporarily been stalled. President Jimmy Carter took a much less aggressive approach to the drug war than Nixon had. The country took a break from seven years of continual drug war and police power escalation, at least at the federal level.
But Sam Ervin’s defeat of the no-knock raid was in many ways merely symbolic. It was never clear that federal agents actually needed the law to conduct such raids in the first place. Indeed, by the early 1980s they were using the tactic again, without any new federal law to officially reauthorize the practice. But Ervin’s moral leadership on the issue was important in halting the spread of a dangerous tactic, even if only temporarily. In his autobiography, Ervin writes, “I was convinced that we must not sacrifice the proud boast of our law that every man’s home is his castle on the altar of fear.”89
The lull in the fighting didn’t last long. Before Carter left the White House, he’d face allegations that pot-smoking was common among his staff and that two senior-level aides were cocaine users—and that one of them was his drug czar. The Reagan administration would soon come in to staff the drug policy positions with hardened culture warriors.
Ervin’s wins were important, but ultimately ephemeral. The drug war and police militarization trends were about to merge. By the time Sam Ervin died in April 1985, the California National Guard was sending helicopters to drop camouflage-clad troops into the backyards of suspected pot growers in Humboldt County; the Justice Department was wiretapping defense attorneys; and Daryl Gates was using a battering ram affixed to a military-issue armored personnel carrier to smash his way into the living rooms of suspected drug offenders.
The Numbers
Value of the property that Nixon claimed in 1972 was stolen each year by heroin addicts: $2 billion
. . . claimed by Minnesota senator George McGovern: $4.4 billion
. . . claimed by Nixon administration drug treatment expert Robert DuPont: $6.3 billion
. . . claimed by Illinois senator Charles Percy: $10 billion–$15 billion
. . . claimed by a White House briefing book on drug abuse distributed to the press: $18 billion
Total value of all reported stolen property in the United States in 1972: $1.2 billion
Number of burglaries committed by heroin addicts each year, per Nixon administration claims: 365 million
Total number of burglaries committed in the United States in 1971: 1.8 million
Number of SWAT teams in the United States in 1970: 1
Number of SWAT teams in the United States in 1975: approximately 500
Total number of federal narcotics agents in 1969: 400
Total number of federal narcotics agents in 1979: 1,941
Peak year for illicit drug use in America: 1979
Total number of no-knock search warrants carried out by the federal government from 1967 to 1971: 4
Number of no-knock search warrants carried out by ODALE during its first seven months of existence in 1972: more than 10090
CHAPTER 6
THE 1980S—US AND THEM
It now appears that . . . victory over the Fourth Amendment is complete.
—WILLIAM BRENNAN
William French set the tone for the Reagan administration early on. In one of the first cabinet meetings, the new attorney general declared, “The Justice Department is not a domestic agency. It is the internal arm of the national defense.”
This would be a rough decade for the Symbolic Third Amendment. Reagan’s drug warriors were about to take aim at posse comitatus, utterly dehumanize drug users, cast the drug fight as a biblical struggle between good and evil, and in the process turn the country’s drug cops into holy soldiers.
French surrounded himself with a crew of prosecutors who called themselves the “hard chargers.” One was Rudy Giuliani, a rising star brought to Washington by French after he had racked up some impressive federal drug prosecutions in New York. In an interview with the journalist Dan Baum, Lowell Jensen, another of French’s advisers, said that the first task French assigned Giuliani was to survey US attorneys, cops, and prosecutors across the country about how the federal government could get more involved in fighting local crime. The overwhelming answer French got back was the same answer John Mitchell got when he posed the same question to his aides in the early days of the Nixon administration: launch a war on drugs.
So they did, with some sweeping new policies. One of the most significant new policies came thanks to a fortuitous bit of timing. Shortly after Reagan took office, the General Accounting Office (GAO) released a report, commissioned by Democratic senator Joe Biden of Delaware a year earlier, on the use of civil asset forfeiture. Civil forfeiture was a concept that had a long tradition in English common law. Under the law of deodands—Latin for “given to God”—anytime a piece of property caused a death, the property itself could be deemed guilty of the crime, at which point it or its value had to be forfeited over to the Crown. In colonial times, the concept was extended to allow the state to seize and confiscate ships that had been used to smuggle contraband. The Crown’s abuse of the practice is often credited with inspiring the Fifth Amendment’s prohibition on the taking of property without due process.1
But until the 1970s, the government couldn’t take property that wasn�
��t directly used in a crime. The government could shut down an illegal brothel, but it couldn’t touch a house or car or boat the owner had bought with revenue generated by the brothel. That all changed when a young policy wonk named Robert Blakey, formerly of Robert F. Kennedy’s Justice Department, conceived of a way to extend the government’s reach. Under Blakey’s idea, once the government convicted someone on charges related to organized crime, prosecutors could go after everything the guilty party had bought and earned with the proceeds of the criminal enterprise.
Blakey called the law RICO (Racketeering Influenced and Corrupt Organizations), after Rico Bandello, the fictional gangster in the 1931 movie Little Caesar. Originally conceived to target organized crime, by the time the law passed in 1970 it had become so broad that even Nixon’s hard-liners were concerned. In opposing the law, Nixon’s Justice Department told Congress that its broad reach “would result in a large number of unintended consequences.”2
Reagan’s Justice Department had no such reservations. The 1981 GAO report concluded that the government wasn’t using forfeiture nearly enough, and that an excellent opportunity to collect revenue was going to waste. Reagan’s people would take care of that.
Reagan also brought in the FBI to help enforce the drug laws. The agency had long resisted joining the drug war, particularly under J. Edgar Hoover. The legendary PR-savvy director knew the issue was a loser and tended to lure law enforcement into corruption. But by 1980 Hoover had been gone for seven years. It was time to bring the FBI into the fold.
The new administration also wanted to do away with the Exclusionary Rule, override Miranda, abolish bail and parole, douse pot farms with herbicides, put far more focus on enforcement and far less on treatment, and, perhaps most radically of all, enlist the military in the war on drugs.