by Radley Balko
By the late 1980s, the policies, rhetoric, and mind-set of the Reagan-Bush all-out antidrug blitzkrieg had fully set in at police departments across the country. Nearly every city with a population of 100,000 or more either had a SWAT team or was well on its way to getting one. The tactics that ten years earlier had been reserved for the rare, violent hostage-taking or bank robbery were by now employed daily by large police departments from coast to coast. “I wonder where the United States is heading,” Federal District Court judge Richard Matsch, a Nixon appointee, told USA Today in 1989. “My concern is that the real victim in the war on drugs might be the United States Constitution.” Another federal judge, Reagan appointee John Conway, worried that “police practices of this nature raise the grim specter of a totalitarian state.”42 The free market economist Milton Friedman, who had worked in both the Nixon and Reagan administrations, was so concerned that he wrote an open letter to Bennett in the Wall Street Journal:
This plea comes from the bottom of my heart. Every friend of freedom, and I know you are one, must be as revolted as I am by the prospect of turning the United States into an armed camp, by the vision of jails filled with casual drug users and of an army of enforcers empowered to invade the liberty of citizens on slight evidence. A country in which shooting down unidentified planes “on suspicion” can be seriously considered as a drug-war tactic is not the kind of United States that either you or I want to hand on to future generations.43
The public appeared to side with Bennett. In a September 1989 poll conducted by the Washington Post and ABC News, 62 percent of the country said that they would “be willing to give up a few of the freedoms we have in this country if it meant we could greatly reduce the amount of illegal drug use.” Another 52 percent agreed that police should be allowed “to search without a court order the houses of people suspected of selling drugs, even if houses of people like you are sometimes searched by mistake.”44
In Boston, police cracked down with “Terry” searches—the “stop-and-frisk” searches that were borne of Terry v. Ohio—of any suspected drug offenders “who cause fear in the community,” a broad enough justification to let them search anyone at will. Suffolk Superior Court judge Cortland Mathers described the new policy as, “in effect, a proclamation of martial law in Roxbury for a narrow class of people, young blacks.” A Boston Globe article in September 1989 described how what was essentially an occupation of some neighborhoods was degrading an entire generation’s opinion of police. One woman who worked with preteens at a city community center told the paper that the children “have a negative sense of a police officer. They see the television version of a police officer, who is knocking down doors for the bad guys, then they see their friends, innocent people, getting stopped and searched. They see innocent people getting harmed by police for no reason. When I talk to 9- and 10-year-olds, they think all police are bad.” A thirteen-year-old girl at the center told the Globe reporter, “Some officers let guns and badges go to their heads. They want respect, but if they don’t give respect, they don’t get respect. Like when they jumped to the conclusion to shoot that 30-year-old man.” (She was referring to an incident in which a Boston police officer shot Rolando Carr during a stop-and-frisk. Carr was unarmed.) An eight-year-old added, “Sometimes, they should look more into the situation before they do anything.”45
William Bennett supported what was going on in Boston and in a number of other cities that had passed “anti-loitering” laws, which had the same effect—to give police the power to essentially declare martial law in many neighborhoods. Such law enforcement saturations of mostly minority neighborhoods were merely due to “the overriding spirit and energy of our front-line enforcement officers,” Bennett said. “We should be extremely reluctant to restrict [them] within formal and arbitrary lines.”
Meanwhile, the pile of collateral damage was growing. In Riverside, California, police staged fourteen simultaneous raids over a two-and-a-half-block area. The raid turned up very little contraband. In one of the raids, fifty-year-old Richard Sears and his wife Sandra woke up to flash-bang grenades and armed men in their bedroom. Unaware that the men were police, Sears resisted and was repeatedly struck in the face with the butt of a rifle. When Sandra Sears attempted to escape the detonating grenades, she was pulled back into the room and thrown to the floor. Sears was arrested and charged with interfering with a police officer and resisting arrest. The charges were later dropped, and the sheriff’s department admitted that the Searses had done nothing wrong.46
In March 1989, police in Gardena, California, raided the home of Lorine Harris on suspicion of drug activity. By the occupants’ account of the raid, Officer Davie Mathieson mistook the sound of a flash-bang grenade for hostile gunfire and shot Harris’s twenty-year-old son, Dexter Herbert, in the back, killing him. According to Mathieson’s account of the raid, another man, Mack Charles Moore, had run out of a bedroom holding a shotgun. Officer Mathieson attempted to shoot Moore, but shot and killed Herbert instead. By both accounts, Herbert was unarmed. Prosecutors twice attempted to try Moore for Herbert’s death, arguing that his wielding of the shotgun provoked Mathieson to shoot Herbert. The first attempt ended in a mistrial, the second in an acquittal.47
Though law enforcement officials would often defend the paramilitary tactics as critical to preserving officer safety, cops were dying in these raids too.
Boston detective Sherman Griffiths died after he was shot through the door while preparing to raid a suspected drug house. In May 1988, the Washington Post ran an article under the headline “Show of Force.”48 The piece profiled the new, particularly aggressive antidrug police units at the Prince George’s County, Maryland, police department. The article noted that the department was conducting more raids, more “jump outs” on suspected drug dealers, and making many, many more arrests than it had in the past. Three months later, one of those teams conducted a drug raid on an apartment in the town of Riverdale. Cpl. Patrick Murphy, thirty-five years old, crouched in front of the door to position a hydraulic ram designed to blow the door open. As he did, someone inside opened the door. Two of Murphy’s colleagues responded by opening fire. One suspect was shot in the face. Murphy was struck in the back of the head. He later died at the hospital. The police first claimed that someone inside the house fired at them. But it was later revealed that the only gun in the house hadn’t been fired that night. Murphy himself had shot an unarmed, fleeing suspect during a drug raid in 1982.49
Officer Keith Neumann, twenty-four years old, was also killed by a fellow police officer during a predawn drug raid on August 4, 1989, in Irvington, New York. The raid turned up an eighth of an ounce of cocaine and no weapons. Neumann had been married just three weeks before his death.50
And in February 1989, black-clad police wearing face masks broke into the Titusville, Florida, home of fifty-eight-year-old Charles DiGristine, his wife, and their four children. They staged the no-knock raid after an informant told police someone was dealing drugs from the house and was protecting the drug supply with armed guards. DiGristine first heard an explosion (the flash-bang grenade), then his wife’s scream. He ran to his bedroom to get his handgun. Officer Stephen House entered DiGristine’s bedroom with his gun drawn. The two exchanged gunfire. House was struck and killed. The police found no large supply of drugs, only less than a gram of marijuana that belonged to DiGristine’s sixteen-year-old son. DiGristine was arrested and initially charged with murder, which could have brought a death sentence. A grand jury lowered the charge to second-degree murder, which still could have sent him to prison for the rest of his life. But the following August, a Titusville jury acquitted him on all charges. DiGristine later filed suit against the city. During discovery, his attorney found prior incidents of botched raids and excessive force, including one incident where, as police approached a house, the homeowner opened the door and invited them inside. They tossed flash-bang grenades through the doorway anyway. Titusville city manager Randy Reid called the lawsuit par
t of an “overall plan of greed and publicity.”51
Forty-three-year-old Richard Elsass was sleeping in a trailer outside the Ripon, California, truck stop where he worked when on the morning of October 20, 1989, black-clad SWAT teams from San Joaquin and Stanislaus Counties swarmed the building as part of a predawn drug raid. According to police, they knocked and announced themselves several times, after which Elsass said, “Wait a minute.” When he didn’t answer the door, Sgt. Deighton Little of the San Joaquin County Sheriff’s Department went around to the back and smashed a window with his flashlight. When Little looked inside, Elsass shot him, killing him. The other officers then opened fire into the trailer, killing Elsass.
Friends and coworkers said Elsass was both a heavy sleeper and hard of hearing. They also told local media that he had mentioned having some safety concerns about some of the people and activity near the truck stop. The police found no drugs in Elsass’s trailer, nor any evidence linking him to a drug crime. Officials from both police departments promised a full and impartial investigation, even as they assured the public that their officers had followed all the proper procedures and done nothing wrong. Not surprisingly, the subsequent internal reviews at both departments cleared all of the raiding. The police conducted a violent, volatile drug raid on the home of an innocent man, killed him, and got one of their own killed in the process. Yet by their own measure, they followed all the proper procedures, and nothing about those procedures needed to be changed. The inescapable conclusion: raiding and killing innocent people is an acceptable outcome of drug policing. In 1994 a jury found the officers negligent and awarded Elsass’s family $175,000 in damages. 52
UNDER THE OPEN FIELDS DOCTRINE, THE SUPREME COURT had already given its approval to law enforcement officers trespassing on private property without a warrant to search for criminal activity, even when they had to scale fences, open gates, and ignore NO TRESPASSING signs to do so. The Court then broadened the doctrine to include aerial inspections and photographs from fixed-wing aircraft from one thousand feet or higher. In 1989 the Court capped a rather ignoble decade of drug war decisions with a gobsmacker: the Court gave its approval for police to hover in helicopters at low altitudes in order to see behind the walls of structures built on the private property of private citizens. All without a warrant. In 1988 a law enforcement officer in Florida got a tip that marijuana was being grown in a private greenhouse. When the investigating deputy was unable to see into the greenhouse on foot, he used a police helicopter to fly over the property. After lowering the helicopter to just four hundred feet from the ground, the deputy was able to peer into an open roof panel and spot some marijuana plants. In January 1989, by a 5–4 vote, the Supreme Court ruled that the deputy’s actions did not constitute a “search” under the Fourth Amendment, and therefore did not require a warrant.53 The plurality opinion focused mainly on whether Federal Aviation Administration (FAA) regulations permitted a helicopter to fly that low. Justice Sandra Day O’Connor wrote a concurring opinion arguing that the standard shouldn’t be FAA regulations, but whether it was common for aircraft to fly that low. If it was uncommon, then the defendant would have a reasonable expectation of privacy. But because the defendant didn’t argue the point, O’Connor provided the deciding vote for the majority.
Florida v. Riley was one of the last cases that William Brennan would hear. His dissent reads like a man with outrage fatigue. “The plurality undertakes no inquiry into whether low-level helicopter surveillance by the police activities in an enclosed backyard is consistent with the ‘aims of a free and open society,’” Brennan wrote. He then returned to a running theme in his dissents in such cases—that the Court was creating a drug war exception to the Fourth Amendment. He noted that the plurality opinion suggested that the Court might have viewed the case differently if the officer had seen “intimate details” from the helicopter. “Where in the Fourth Amendment . . . [is there] a requirement that the activity observed must be ‘intimate’ in order to be protected by the Constitution?” Brennan wrote. “If the Constitution does not protect Riley’s marijuana garden against such surveillance, it is hard to see how it will prohibit the government from aerial spying on the activities of a law-abiding citizen on her fully-enclosed outdoor patio.” Brennan then quoted from a law review article by Fourth Amendment scholar Anthony Amsterdam: “The question is not whether you or I must draw the blinds before we commit a crime. It is whether you and I must discipline ourselves to draw the blinds every time we enter a room, under pain of surveillance if we do not.” Fittingly, Brennan closed with a passage from George Orwell’s 1984: “In the far distance, a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the Police Patrol, snooping into people’s windows.”54
The Court’s last real civil libertarian retired a month later.
The Numbers
Number of drug raids conducted in 1987 by the San Diego Police Department: 457
Number of drug raids conducted by the Seattle Police Department in 1987: approximately 500
Value of the assets in the Justice Department’s forfeiture fund in 1985: $27 million
Value of the assets in the Justice Department’s forfeiture fund by 1991: $644 million
Percentage of US cities with populations over 50,000 that had a SWAT team in 1982: 59 percent
. . . in 1989: 78 percent
. . . in 1995: 89 percent
Percentage of those SWAT teams that trained with active-duty military personnel: 46 percent
Average annual number of times each of those SWAT teams was deployed in 1983: 13
. . . in 1986: 27
. . . in 1995: 55
Percentage of those deployments in 1995 that were only to serve drug warrants: 75.9 percent
Percentage of cities with populations between 25,000 and 50,000 that had a SWAT team in 1980: 13.3 percent
. . . in 1984: 25.6 percent
. . . in 1990: 52.1 percent
Average annual number of times each SWAT team in a city with a population between 25,000 and 50,000 was deployed in 1980: 3.7
. . . in 1985: 4.5
. . . in 1990: 10.3
. . . in 1995: 12.555
CHAPTER 7
THE 1990S—IT’S ALL ABOUT THE NUMBERS
Why serve an arrest warrant to some crack dealer with a .38? With full armor, the right shit, and training, you can kick ass and have fun.
—US MILITARY OFFICER WHO CONDUCTED TRAINING SEMINARS FOR CIVILIAN SWAT TEAMS IN THE 1990S
The 1990s kicked off with a familiar debate: Congress wanted the military to be more involved with the drug war. At the urging of drug czar William Bennett, the Bush administration was waging aggressive antidrug campaigns in Latin America, the most notable of which was the 1989 invasion of Panama to capture military governor Manuel Noriega, who was wanted in the United States for drug trafficking. That action was made possible by an opinion from the Justice Department’s Office of Legal Counsel; issued a month before the invasion, the opinion concluded that the Posse Comitatus Act didn’t apply outside of US borders. Members of Congress followed by calling for more policelike actions by US troops to arrest suspected drug dealers in other countries.
Secretary of Defense Dick Cheney had led the Republican push for the 1988 drug bill that included the death penalty for drug dealers and widespread use of the military for drug interdiction. One Cheney lieutenant, Assistant Secretary of Defense Stephen Duncan, said at a 1991 conference, “We look forward to the day when our Congress . . . allows the Army to lend its full strength toward making America drug free.”1 Even some career military officials were starting to come around, mostly out of fear that after the fall of communism in Europe, the military could suffer a loss of stature if it didn’t find a new enemy to engage. “The Soviet threat is being taken away from us,” one DC military scholar explained to the Chicago Tribune. “The Department of Defense had better develop some social-utility argu
ments that match the requirements of the American people.”2
Even Cheney drew the line at using active-duty troops for civilian policing inside of US borders—but that didn’t seem to stop it from happening. The Christian Science Monitor reported in August 1990 that 58 active-duty Army troops had assisted in Operation Clean Sweep, the latest marijuana eradication program in northern California, and another 225 infantry soldiers and aviators and nine UH-60 Blackhawk helicopters from Fort Lewis, Washington, helped find pot plants in Operation Ghost Dancer in Oregon.3
The early 1990s also saw a new push to find a greater drug war role for the National Guard. “When you have the equipment and trained personnel, you might as well put them to work,” said Rep. Nick Mavroules, a Massachusetts Democrat serving on the House Armed Services Committee. When asked about the traditional line separating the military from domestic policing, Republican representative Duncan Hunter of California snapped, “It depends on which is more sacred, that line or your children’s lives.” One influential Capitol Hill staffer gave an especially confused justification. “We have to take some kind of action, not because it’s going to solve the problem . . . but because of the fact that the druggies have gotten their fingers into an awful lot of pies.”