by Radley Balko
There were a few positive developments. The city did implement some procedures that increased the amount of time it takes to obtain a drug raid warrant from two to twenty-four hours. Consequently, the total number of drug raids did drop, from 5,117 in 2002 to 3,577 in 2003. That decrease isn’t insignificant, but the post-reform figure in 2003 was still 250 percent higher than the number of annual raids just ten years earlier. Judges and police were also required to attend training workshops on proper drug investigation techniques and the issuance of narcotics warrants. The city also restricted the use of flash-bang grenades, and finally prohibited them completely in 2010.
It would be hard to come up with a more sympathetic drug raid victim than Alberta Spruill. But even after her death, after the revelation of dozens of similar botched raids, after intense media exposure in the country’s largest city, and after promises for substantive reforms to prevent similar incidents from happening again, it wasn’t long before drug policing in the city returned to business as usual—and the mistaken raids started up again.36 By 2006, the number of citizen complaints about residential search warrant raids had swelled to 1,065, a 49 percent jump over 2002, the year before the Spruill raid.37 If it couldn’t happen in New York City after this incident, real reform would be a long, tough slog, if it was possible at all.38
JUST BEFORE THE FEDERAL ASSAULT WEAPONS BAN WAS SET to expire in 2004, the National Institute for Justice released a study looking at the use of assault weapons in violent crimes. Drawing on crime data from several American cities, the report found that assault weapons were “rarely used in gun crimes, even before the ban” was put in place. Moreover, because assault weapons are so rarely used by criminals, NIJ found that, “should it be renewed, the ban’s effects on gun violence were likely small at best, and perhaps too small for reliable measurement.” The report also found that the use of such high-powered weaponry to kill police officers was “very rare.”39
The NIJ study was used by gun rights groups to argue against renewing the assault weapons ban. But it was also a strong piece of evidence undercutting the common argument from law enforcement officials that SWAT teams and military gear were essential because the police were in a nonstop arms race with drug dealers and other criminals—call it the North Hollywood Shoot-out Argument.
And in fact, the 2004 NIJ study was only the most recent to cut against that argument. In 1995 the Justice Department had released a study showing that 86 percent of violent gun crimes in the United States involved a handgun. The most popular weapon used in homicides at the time wasn’t an automatic weapon but a large-caliber revolver. Just 3 percent of murders in 1993 were committed with rifles, and just 5 percent with shotguns.40 A 1997 Palm Beach Post investigation of area SWAT raids found that of 309 recent arrests made by the twelve SWAT teams in Palm Beach County, Florida, only 60—or 19 percent—produced weapons of any kind.41 A five-year investigation in Orange County, Florida, in the mid-1990s likewise found that just 13 percent of SWAT raids turned up weapons.42
In 2007 I asked David Doddridge, a retired narcotics cop and LAPD veteran, about the argument that SWAT tactics are necessary because drug dealers are increasingly well armed. “It just isn’t true,” he said. “In twenty-one years at LAPD, I never once saw any assault weapons on a drug raid. Drug dealers prefer handguns, which are easier to conceal. Occasionally you’ll find a shotgun. But having a bunch of high-powered weaponry around is just too much trouble for them. It’s too much for them to worry about.”43 Doddridge’s experience isn’t universal, but it is common among drug cops I’ve talked to. There do seem to be more higher-powered arms around the border, and obviously cops who investigate the sale and smuggling of illegal guns will tend to find a greater quantity of more powerful weapons in the course of their work.
But even when the crime rate was peaking in the late 1980s and early 1990s, there was little evidence that murderers were using high-powered weapons. In a 1991 paper for the Independence Institute (a libertarian think tank), researchers David Kopel and Eric Morgan ran a survey of dozens of American cities and found that, in general, fewer than 1 percent of the weapons seized by police fit the definition of an “assault weapon.” Nationally, they found that fewer than 4 percent of homicides involved rifles of any kind. And fewer than one-eighth of 1 percent of homicides involved weapons of military caliber. Even fewer homicides involved weapons commonly called “assault” weapons. The proportion of police fatalities caused by assault weapons was around 3 percent, a number that remained relatively constant throughout the 1980s.
Kopel and Morgan also interviewed police firearms examiners. In Dade County, Florida—where Miami Vice had propagated the image of machine gun–toting drug dealers spraying bullets all over the city—Kopel and Morgan found that the use of assault weapons in shootings and homicides in the city actually declined throughout the decade. A police lieutenant in Washington, DC—the most violent city in the country at the time—told the authors that the preferred weapon of criminals in the nation’s capital was the pistol.44
But more generally, the argument that well-armed criminals have made cops’ jobs more dangerous than ever just isn’t backed up by the data. The job of police officer has been getting progressively safer for a generation. The number of officer fatalities peaked in 1974 and has been steadily dropping since. In fact, 2012 was the safest year for police officers since the 1950s. According to the FBI’s Uniform Crime Reports, the homicide rate for police officers in 2010 (the last year for which data is available) was about 7.9 per 100,000 officers. That’s about 60 percent higher than the overall homicide rate in America, which is 4.8. But it’s lower than the homicide rates in many large cities, including Atlanta (17.3), Boston (11.3), Dallas (11.3), Kansas City (21.1), Nashville (8.9), Pittsburgh (17.3), St. Louis (40.5), and Tulsa (13.7). In fact, of the seventy-four US cities with populations of 250,000 or more, thirty-six have murder rates higher than that of police in America. You’re more likely to be murdered just by living in these cities than the average American police officer is to be murdered on the job.
Proponents of police militarization will argue that these figures show that militarization is working—it’s making cops safer. It’s a convenient way to frame the debate. If police fatalities go up, it’s an indication that criminals are getting more dangerous and cops need more firepower. If police fatalities go down, it means militarization is working. But it’s far from clear that bigger guns and more aggressive tactics are responsible for the drop. For example, assaults on police officers have also been dropping, a statistic that isn’t explained by cops in SWAT gear performing more drug raids. The most likely explanation is that killings of police officers have declined for the same reasons the overall crime rate has dropped over roughly the same period. (Criminologists are still fighting over what those reasons are.)
The more important questions are why these myths persist, and what effect they have on the way police officers approach the job. As for why the myths persist, one explanation is that the public rarely takes an optimistic view of crime and public safety. For example, polls still consistently show that most Americans think crime in the country is getting worse, even though, as noted, it has been dropping quite dramatically for nearly twenty years.
But law enforcement officials themselves help perpetuate the perception that cops’ jobs are fraught with peril. At the end of every calendar year, the National Law Enforcement Officers Memorial Fund puts out the police mortality figures for the year about to end. The figures always generate a good amount of media coverage. But whether the figures are up or down, the quotes in these stories from the law enforcement community are always the same. They always stress that police officers have incredibly dangerous jobs and that every cop’s next day on the job could be his last. But from the figures above, that’s like saying every day a Bostonian spends in Boston could be his last. Technically both statements are true. But they convey a false sentiment about risk. The problem is that there are plenty of incentives for
law enforcement leaders to play up the risks to the job. It moves the public debate over issues like militarization, police discretion, use of force, and police budgets more in their favor. The “heavily armed criminals” angle also tends to find favor with gun control advocates in the media.
But playing up the risks and dangers of the job, even in spite of overwhelming evidence that things are getting better, almost certainly has an impact on the mind-set of the average cop. If you approach the job as if every day could be your last, you’re going to approach every citizen encounter as if it could be your last. That makes everyone a potential enemy. The job becomes about survival, not public service. Hence, the unofficial motto of the job you often hear from cops, or see posted on police discussion boards: “Whatever I need to do to get home safe at the end of the day.”
In a 2006 op-ed in the Wall Street Journal written in reaction to the killing of twenty-three-year-old Sean Bell—who went down in a storm of fifty bullets fired by NYPD cops—Joseph McNamara looked at the gradual change in the average cop’s mind-set since he walked a beat in New York.
Simply put, the police culture in our country has changed. An emphasis on “officer safety” and paramilitary training pervades today’s policing, in contrast to the older culture, which held that cops didn’t shoot until they were about to be shot or stabbed. Police in large cities formerly carried revolvers holding six .38-caliber rounds. Nowadays, police carry semi-automatic pistols with sixteen high-caliber rounds, shotguns, and military assault rifles, weapons once relegated to SWAT teams facing extraordinary circumstances. Concern about such firepower in densely populated areas hitting innocent citizens has given way to an attitude that the police are fighting a war against drugs and crime and must be heavily armed.
Yes, police work is dangerous, and the police see a lot of violence. On the other hand, 51 officers were slain in the line of duty last year, out of some 700,000 to 800,000 American cops. That is far fewer than the police fatalities occurring when I patrolled New York’s highest-crime precincts, when the total number of cops in the country was half that of today. Each of these police deaths and numerous other police injuries is a tragedy and we owe support to those who protect us. On the other hand, this isn’t Iraq. The need to give our officers what they require to protect themselves and us has to be balanced against the fact that the fundamental duty of the police is to protect human life and that law officers are only justified in taking a life as a last resort.45
On the other side, it’s difficult to even get an estimate of the number of times police officers shoot citizens. Some states require police departments to keep those figures, but national data is difficult to come by. The New York Times reported in 2001, “Despite widespread public interest and a provision in the 1994 Crime Control Act requiring the attorney general to collect the data and publish an annual report on them, statistics on police shootings and use of nondeadly force continue to be piecemeal products of spotty collection, and are dependent on the cooperation of local police departments.” The paper added, “No comprehensive accounting for all the nation’s 17,000 police departments exists.”46 University of South Carolina criminology professor Geoffrey Alpert called the lack of reporting “a national scandal,” adding, “These are public servants who work for us and are paid to protect us.”47 The Las Vegas Review Journal also looked for national figures for its 2011 series on a rise in local police-involved shootings. Little had changed since the New York Times report a decade earlier.
The nation’s leading law enforcement agency collects vast amounts of information on crime nationwide, but missing from this clearinghouse are statistics on where, how often, and under what circumstances police use deadly force. In fact, no one anywhere comprehensively tracks the most significant act police can do in the line of duty: take a life.
“We don’t have a mandate to do that,” said William Carr, an FBI spokesman in Washington, DC. “It would take a request from Congress for us to collect that data.”48
Congress, it seems, hasn’t asked.
Americans, then—both police officers and others—are regularly reminded about the inherent danger faced by police officers, even though the job is getting safer. But not only aren’t figures about how many times cops shoot at, injure, or kill citizens publicized, the figures themselves haven’t been tabulated. The federal government has been arming American cops with military-grade guns, vehicles, and other weaponry, but has little interest in knowing if all of that is affecting how and when police use lethal force against American citizens. Cops are told all the time that the public presents a threat to them, and that the threat grows more dire by the day. But as for what sort of threat cops pose to the public, the public isn’t permitted to know.
These policies have given us an increasingly armed, increasingly isolated, increasingly paranoid, increasingly aggressive police force in America, and a public shielded from knowing the consequences of it all.
THE EXPLOSION HAPPENED WITHOUT WARNING AROUND 4 AM IN West Chester, Pennsylvania. FBI agent Donald Bain was sitting in his car in a parking lot with two other agents. He was armed and wore a Kevlar vest. He was also carrying a “flash-bang” grenade, a nonlethal weapon that emits a bright flash and deafening bang that’s used to shock and disorient criminal suspects or the enemy in combat situations.
The three agents—Bain, Thomas Scanzano, and James Milligan—were waiting for developments in a kidnapping that had turned into a hostage stakeout.
That’s when, Bain says, the flash-bang grenade in his vest just blew up.
“The car is on fire,” Bain recalled. “I was told later I was on fire. Smoke billowing in the car. It was obviously chaos.”49
That was the introduction to a 2008 CNN report about an incident that happened in 2004. The federal government subsequently issued criminal indictments against Pyrotechnic Specialties Inc. (PSI), alleging that the company knew that its flash-bang grenades were defective but continued to sell them to the federal government anyway.
CNN also interviewed Dean Wagner, a US Army sergeant who lost a hand in Iraq when a flash-bang grenade prematurely detonated as he was holding it. “They don’t have a clue what it’s like,” Wagner told the network, referring to PSI. “If they could experience that, or someone close to them would have to go through that experience, I’m sure it would be a different story and maybe they wouldn’t have allowed it to happen.”
A few years later, in February 2011, Fred Thornton, a member of the Charlotte-Mecklenburg SWAT team, was killed when a flash-bang grenade went off as he was organizing his SWAT gear in his garage. The next month, in Alice, Texas, SWAT commander Richard DeLeon was critically injured when a flash-bang grenade went off as he was putting gear into his car.50 And in 2001 an FBI agent in Buffalo, New York, was burned on his hands and upper body when a flash-bang grenade went off unexpectedly.51
These incidents are tragic and unfortunate. But they’re also rather chilling. Every day SWAT teams across the country use the very same explosives that injured agents Bain, Scanzano, Milligan and killed Officer Thornton—and they use them against American citizens. Granted, they aren’t deployed in quite as tight an area as an enclosed car. But garages? Certainly. Also bedrooms, kitchens, hallways, and living rooms. This could be perhaps justified if the devices were only used against people actively taking hostages or robbing a bank or violent fugitives on the run. But the vast majority of the time they’re used in the service of warrants for nonviolent crimes—and not even against people convicted of those crimes, but people merely suspected of them. They’re also used against anyone else who happens to be in the house at the time of the raid. And against the victims of wrong-door raids.
Clay Conrad, a criminal defense attorney in Houston, has argued that flash-bang grenades are unconstitutional because, by design, they’re intended to inflict injury on people who have yet to even be charged with a crime, much less convicted of one. “It’s just an assault,” Conrad told me in a 2010 interview. “These things are d
esigned to blind and deafen. They produce a shock wave of 136 decibels or more. You’re intentionally injuring people.”52
Conrad once mounted a challenge to flash-bang grenades in a drug case, based on a Texas law that prevents evidence from being admitted in trial if the police commit a crime while obtaining it. He argued in a brief that the use of flash-bangs during drug raids constitutes a criminal assault. Conrad says that the prosecution offered a generous plea before that issue could be hashed out in court. “We were prepared to argue that if these things are as harmless as the state claims, we should be able to detonate one in the courtroom,” Conrad says. “That would have been fun.” (Of course, it could also be argued that nearly everything about these raids inflicts punishment on people who have yet to be charged with a crime.)
The same year the CNN story came out, a state judge in New Jersey tossed the conviction of a man suspected of dealing meth because police used flash-bang grenades and paramilitary tactics to serve the warrant, including waking a seventeen-year-old (who was not the suspect) by pointing their guns at him. “This was a commando raid–like scenario,” Superior Court judge James J. Morley said, “and my decision was based on the overall way they approached the case—at 5 AM with 29 police officers in commando gear and pointing a weapon at a sleeping 17-year-old.”53
“The argument is that it shocks the conscience,” Conrad says. “That argument has some validity to it in the right cases, where you’re using these volatile tactics against someone who’s suspected of nothing more than drug dealing. It’s excessive to the point of violating the Fourth Amendment.”
The CNN report called flash-bang grenades “nonlethal,” but that term only refers to the officers’ intent when using them; it doesn’t mean the devices can’t kill, as the families of Officer Thornton and Alberta Spruill would attest. More recently, in late 2012, a twelve-year-old Montana girl suffered severe burns after police on a drug raid tossed a flash-bang grenade through her window.54 The following month the city of St. Paul, Minnesota, paid out a $400,000 settlement to a woman set on fire by a flash-bang grenade thrown by police during a drug raid.55