by Radley Balko
Part of the reason why so many politicians were enthusiastic was that National Guard involvement brought increased funding to their states. In 1989, the first year of the program, Congress appropriated $40 million for the National Guard’s drug interdiction efforts. The next year funding jumped to $70 million. Two years later it was up to $237 million.4 Any congressman or senator who opposed Guard troops fighting the drug war out of principle risked leaving his state out of the bounty. In Washington State, for example, the state’s National Guard received just under $1 million for antidrug operations. The next year the state’s congressional delegation signed a letter requesting seven times that amount.
In 1989 in Portland, Oregon, Herb Robinson of the Seattle Times noted, fully armed Guard troops had recently been stationed in front of suspected drug houses in a series of drug raids.5 In Kentucky local residents became so enraged by frequent Guard sweeps in low-flying helicopters that they blew up a radio tower used by the Kentucky State Police. In Oklahoma, Guard troops dressed in battle garb rappelled down from helicopters and fanned out into rural areas in search of pot plants to uproot.
National Guard units flew antidrug surveillance helicopters and boarded up crack houses in Washington, DC; flew surveillance helicopters and cruised the streets with infrared gear to spot drug houses in Brooklyn; sealed crack houses in Philadelphia; were sent to support drug raids in Baltimore; and helped serve ninety-four drug warrants during a massive, citywide raid in Pittsburgh. Members of the Pennsylvania Guard assisted in raids of two factories that produced small glass vials. There were no drugs in the vials, but under state law the vials were still illegal because they were primarily used by drug dealers to package crack cocaine.6 In the summer of 1990, an Army helicopter circled overhead as Massachusetts National Guard troops—some in uniform, some undercover—assisted police in Foxboro in identifying potential drug offenders at a Grateful Dead show.7
In rural Maine, the National Guard was assisting in Humboldt County–style raids in rural parts of the state. Guard helicopters would perform flyovers, then raid teams consisting of federal and state officials would swoop in. “The standard operating procedure is to come in with battering rams, weapons out and cocked, shouting profanities,” a marijuana legalization activist in the town of Chesterville told the Associated Press in 1992.8
By the end of 1992, the National Guard’s role in the drug war was fully operational. In that year alone, National Guard troops across the country assisted in nearly 20,000 arrests, searched 120,000 automobiles, entered 1,200 private buildings without a search warrant, and stepped onto private property to search for drugs (also without a warrant) 6,500 times.9
Col. Richard Browning III, head of the organization’s drug interdiction effort, declared that year, “The rapid growth of the drug scourge has shown that military force must be used to change the attitudes and activities of Americans who are dealing and using drugs. The National Guard is America’s legally feasible attitude-change agent.”10
Symbolically, the National Guard bridges the gap between cop and soldier. Guard troops train like soldiers and dress like soldiers, and they are regularly called up to fight in wars overseas. But when they are acting under the authority of a state governor, Guard troops aren’t subject to the restrictions of the Posse Comitatus Act. Giving the Guard a more prominent role in the drug war not only escalated the drug fight, it further conditioned the country to the idea of using forces that looked and acted quite a bit like soldiers for domestic law enforcement.
WITH MORE AND MORE FUNDS FLOWING TOWARD DRUG eradication, police agencies began to step on each other’s toes to grab grants and shares of the money earmarked for various antidrug programs. That produced tragic outcomes for any citizens caught in the middle. In January 1990, for example, President Bush initiated a new plan to crack down on drug smugglers at the border. He designated five border regions as “high-intensity drug-trafficking areas,” making each region eligible for a cut of the $10.6 billion he had requested to fund the plan.
One of the regions included the San Diego area. About three years into the program, forty-one-year-old Fortune 500 executive Donald Carlson awoke at around midnight to a pounding at his front door. He asked several times who was there. No one answered. Carlson became frightened. He walked back to his bedroom in the pitch dark to retrieve his gun, while nervously fumbling with a cordless phone as he attempted to call the police.
Carlson then heard the glass window in his den shatter. That was followed by what he’d later describe as “a thunderous explosion.” Someone then yelled, “He’s got a gun!” Now terrified, Carlson fired at the door, hoping to scare the intruders away. Instead, they fired back. The first bullet flayed his upper thigh, severing his femoral artery. Carlson discarded the gun. He had just made it back to his bedroom when he dropped to the floor. He’d been hit by two more bullets.
Carlson looked up and saw figures staring down at him, darkened behind the flashlights they were pointing in his face. One of them screamed at him, “Don’t move, motherfucker, or I’ll shoot!”
But the pain in Carlson’s arm began to overcome his adrenaline, so he attempted to adjust it. Again: “Don’t move, motherfucker, or I’ll shoot!” The men then rolled him over and handcuffed him. None of them attempted to give him medical attention. They left him to bleed in his own bedroom until paramedics arrived a half-hour later. Carlson later said that on the way to the hospital, he prayed for God to let him die.
Fortunately, Carlson survived. What happened to him was a direct consequence of President Bush’s new drug policy. The DEA and Customs had always had a bitter rivalry, going back to the Nixon years. Bush’s 1990 border plan had shifted a great deal of the federal government’s antidrug strategy toward the border, putting Customs in charge. That angered the careerists at the DEA, and only intensified the rivalry between the two agencies. Because they were competing for the same pot of money, pressure mounted for agents to make big busts, skim over constitutional protections, and play fast and loose with procedure.
“The Carlson shooting is an example of how competition between federal law enforcement works to the detriment of the public,” one federal agent later told the San Diego Union-Tribune. A local judge agreed. “There’s no question that when you have turf wars between law enforcement agencies, you’re going to have potential for disaster.” The Carlson raid was part of Operation Alliance, which itself was part of a border interdiction effort in which Customs and the DEA were supposed to have been working together. Subsequent reports would show that the project only inflamed tensions. Customs officials were so eager to make a big bust that they had neglected to investigate the informant whose tip was their sole source of information for the raid. If they had done so, they’d have discovered that he had a history of lying. According to the Union-Tribune, the DEA had been paying him $2,000 a month to work as an informant but had dropped him two weeks prior to the Carlson raid because he was unreliable. According to one agent, “When a DEA agent says, ‘This guy is no good,’ the first thing a Customs agent wants to do is prove the DEA wrong.” Odder still, because the two agencies were supposed to be working together, there were actually DEA agents who participated in the Carlson raid, which was based on a tip from the informant the DEA had just let go for being untrustworthy.
The police found no drugs or any evidence of any criminal activity in Carlson’s home. They had also raided another home on the same night, based on information from the same informant. That raid didn’t turn up any contraband either. Nevertheless, Carlson spent the first several days of his convalescence shackled to his bed with an armed guard outside his room. By the time he testified before Congress the following June, he had been cleared of any wrongdoing. But the government still refused to give him the names of the agents who raided his home and who worked on the investigation. No one from the government had contacted him about taking care of his medical bills, which by then had topped $350,000, or covering the costs of repairing his house. No one had
even bothered to apologize. And no agents had been disciplined or reprimanded, much less criminally charged. Only the informant had been charged, and those charges were later dismissed. Carlson and his attorney were told that neither Customs, nor the DEA, nor any of the local police agencies involved in the raid saw any reason to change their procedures as a result of what happened.
In its report on the bureaucratic bumbling that led to the Carlson raid, the Union-Tribune found evidence of other mistaken raids wrought by the same misplaced incentives. Midlevel managers and federal law enforcement agencies faced constant pressure to keep their statistics: “Impressive seizures allow these managers of the drug wars to ask for, and receive, larger staffs—and higher pay.” So long as performance was measured with raw seizure and arrest figures, drug agents told the paper, mistaken raids would remain “a fact of life in drug work.” Added a San Diego–era narcotics cop, “Every narc, at one time or another, has hit a wrong door.”
In December 1994, Carlson accepted a $2.75 million settlement from the federal government. He never got an apology.11
PROPONENTS OF NO-KNOCK RAIDS AND FORCED-ENTRY RAIDS HAD always argued that scrutiny from judges and prosecutors would keep abuses and excesses in check. Yet the police officers interviewed for this book unanimously told me that beginning in about the mid-1980s, judges almost never denied their requests for a search warrant. Some judges asked questions now and then, but even then they rarely denied a warrant. As the sheer volume of drug cases picked up in the late 1980s and into the 1990s, many judges stopped asking questions too. A few officers said that they had known that some judges looked more closely at affidavits for no-knock warrants, but added that knock-and-announce requests were never a problem, even when everyone knew the warrant would be served with a dynamic entry.
In 1992 University of Minnesota law professor Myron Orfield sent a questionnaire to Chicago judges, prosecutors, and defense attorneys to determine the state of the Fourth Amendment in that city. Even cynics would find the results dispiriting. More than one-fifth of Chicago judges believed that police lie in court more than half the time when questioned about searches and seizures. Ninety-two percent of judges said that police lie “at least some of the time,” and 38 percent of judges said that they believed that police superiors encourage subordinates to lie in court. More than 50 percent of respondents believed that at least “half of the time” the prosecutor “knows or has reason to know” that police fabricate evidence. Another 93 percent of respondents (including 89 percent of the prosecutors) reported that prosecutors have knowledge of perjury “at least some of the time.” Sixty-one percent of respondents, including half of the surveyed prosecutors, believed that prosecutors know or have reason to know that police fabricate evidence in case reports, and half of prosecutors believed the same to be true when it comes to warrants. Prosecutors also described the unspoken understandings they often shared with cops, including prosecutors articulating cases to police in terms like, “If this happens, we win. If that happens, we lose.” Yet Chicago judges went on approving search warrants with little to no scrutiny. Orfield asked one more question. Did the Exclusionary Rule really deter police misconduct? Every judge, every defense attorney, and every prosecutor but one answered yes.12
Former narcotics cop Russ Jones says it wasn’t always like that. “When I first started writing search warrants, I had to take it to the DA, who would thoroughly review it. Then I’d take it to the judge, who’d also give it a close look. Then the judge always read the warrant, always asked questions. By the time I left law enforcement, and certainly since, it had gotten to the point where the DEA no longer needed to have warrants reviewed by a federal prosecutor, and often the judge wouldn’t even read it. It just became a rubber-stamp process. And I understand it’s happening more and more.”13
In many jurisdictions, search warrants can be approved by magistrates who needn’t even have any legal training. A 1984 study of the warrant process in seven US cities by the National Center for State Courts found that magistrates spend an average of two minutes and forty-eight seconds reviewing warrant affidavits before (almost always) approving the warrant. The study also found evidence that police “magistrate shop”—they seek out magistrates with a reputation for approving warrants quickly and with no hassles, and avoid those who ask questions. In one city, a single magistrate approved 54 percent of the search warrants over the period the study was conducted. The most popular magistrate in another city had rejected just one search warrant in fifteen years on the bench. Not surprisingly, “most police officers interviewed could not remember having a search warrant turned down.”14
After the botched raid that ended the life of Ismael Mena in 1999, the Denver Post looked into how judges in the Mile High City handled requests for no-knock warrants. Again, the results were unsettling. Over a twelve-month period, police in Denver requested 163 no-knock warrants. The city’s judges granted 158 of them. Defense attorneys told the paper they were surprised to learn that the judges had rejected even five. Perhaps Denver police had come to the judges with more than adequate probable cause? Perhaps. But the paper also found that, astonishingly, many of the city’s judges would sign off on no-knock warrants even though the police hadn’t requested one. In fact, about 10 percent of the no-knock warrants were changed from knock-and-announce warrants merely by the judge’s signature—the police hadn’t presented any additional information establishing exigent circumstances. The paper also found that in eight of ten raids over that period, police assertions in affidavits that they would find weapons during the search turned out to be wrong. In only seven of the 163 no-knock affidavits did police present any evidence that the suspect had been seen with a gun. Of those seven raids, just two turned up an actual weapon. The Denver Police Department requires that all no-knock raids be preapproved by the DA’s office. In about one-third of the raids, that never happened. And nearly all the no-knock warrants were granted on little more than a police officer’s assertion that a confidential informant had told him the suspect was armed or likely to dispose of drug evidence, with no additional corroborating information.
When confronted with the results of the investigation, the presiding judge over Denver’s criminal court system wasn’t particularly reassuring. “We are not fact gatherers,” Judge Robert Patterson said. “It’s pretty formulaic how it’s done.” On how a judge could possibly inadvertently approve a no-knock warrant when the police hadn’t even asked for one, Patterson said, “If you sign your name 100 times, you can look away and sign in the wrong place. We read a lot of documents. We may, just like anyone else, sign something and realize later that it’s the wrong place or the wrong thing. Is it wrong not to be paying attention? No. It’s just that we’re doing things over and over again.”15
Hearing Patterson’s explanation, you’d think he was talking about the elementary school teacher who might occasionally mis-grade one of dozens of homework assignments. This was about giving armed law enforcement officers permission to break into homes in the middle of the night, detonate flash-bang grenades, and point their guns at Denver citizens. Patterson, astonishingly, was calmly explaining how the city’s judges couldn’t even be bothered to pay attention to where they signed their names.
Judges and prosecutors weren’t just neglecting their responsibility to protect the Fourth Amendment. They were nearly conspiring against it.
THE EARLY 1990S WEREN’T KIND TO THE FATHER OF SWAT. In response to the Rodney King beating of May 1991, Los Angeles mayor Tom Bradley asked Warren Christopher to chair a commission looking into the LAPD’s use of excessive force. The commission’s report was damning. It found that a small but significant group of police officers within the department regularly used excessive force—and that LAPD leadership did little to stop them. Between 1986 and 1990, the city had faced eighty-three lawsuits that resulted in settlements of awards of over $15,000. The commission found that even though officer misconduct in those cases had often been egregious, it had usuall
y resulted in “light and often nonexistent” discipline. The commission reviewed radio transmissions of LAPD officers referring to a drug roundup in a black neighborhood as “monkey slapping time” or fantasizing about driving down one particular street with a flamethrower—“We would have a barbecue.”
The comments themselves would have been bad enough. Even worse was the fact that a culture existed within the department in which officers felt free to make them over police radio. The LAPD’s focus on reacting to crime instead of preventing it, the commission found, had isolated officers from the communities they patrolled. Cops were rewarded for putting up impressive arrest statistics and for being “hard-nosed.” The report found that drug and gang sweeps of the late 1980s had alienated LAPD cops from the community, creating reciprocal hostility and resentment. The LAPD did a poor job of screening applicants for violent backgrounds, and the department’s training put far too much emphasis on force and too little on communication and problem-solving. The commission found that when academy students went out in the field, they were quickly schooled to view the world from a “we/they” perspective. It also found that many of the field training officers who gave new cops their first experiences on the street themselves had histories of misconduct or excessive use of force.
The commission’s finding on how the LAPD handled citizen complaints was perhaps the most disturbing and enlightening part of the Christopher report. Of the 2,152 complaints filed against LAPD cops between 1986 and 1990, just 42 had been found credible by the department. Most were handled by the accused officer’s supervisors, not by Internal Affairs. Intake officers “actively discouraged” citizens who tried to file complaints, often with verbal harassment or by making them wait for long periods of time. Investigating officers made no attempt to find independent witnesses, meaning that the “investigations” often came down to the officer’s word against the complainant’s. After shootings, officers were usually granted an unrecorded “pre-interview” before they were questioned on tape. The officers involved were also usually interviewed as a group, not individually. All of which gave them opportunity to work out any inconsistencies or contradictions in the story. Perhaps most tellingly, the commission found that when officers were disciplined, the punishment given to officers who had embarrassed the department (drug use, corruption, theft) was much more severe than the punishment given to officers who used excessive force or violated a citizen’s constitutional rights—again reflecting a culture of “us versus them.”16