by Radley Balko
On August 7, police arrested a FedEx driver and an accomplice and charged them with various crimes related to drug trafficking. Trinity Tomsic was never supposed to receive that package of marijuana. A drug distributor in Arizona had used her address to get the package into the general Prince George’s County area, at which point an accomplice working for the delivery company was supposed to intercept it. The police had found several similar packages. Worse, county police knew the scheme was going on and knew some packages had been delivered to residences unbeknownst to the people who lived in them. The Washington Post reported a couple of months later on cases in which innocent people had been arrested. “Defense lawyers who practice in the county said authorities appear to arrest and charge anyone who picks up a package containing marijuana without conducting a further investigation,”5 the Post reported. “The more I think about that, the angrier I get,” Calvo later told Post columnist Marc Fisher. “They knew this scheme was going on, yet it never occurred to them from the moment they found out about that package that we were anything but drug dealers.”6 Prince George’s County police chief Melvin High still couldn’t bring himself to rule out the Calvos as suspects, telling the Washington Post, “From all the indications at the moment, they had an unlikely involvement, but we don’t want to draw that definite conclusion at the moment.”7
Two days later, after the raid had made national and international news, the Prince George’s County Police Department finally cleared Cheye Calvo and his family of any wrongdoing. They did it by way of a press release they put out at 4:30 PM on a Friday, the time and day of the week when bad news is typically buried. It also happened to be the night of the opening ceremonies for the 2008 Summer Olympics in Beijing.8
Perhaps even more baffling, officials continued to insist that the raid shouldn’t have happened any other way. Even as they acknowledged that Calvo and his family were innocent, in the months and years following the raid they would repeat again and again that not a single officer did anything wrong, and that no one had any reason for remorse. In 2010 Sheriff Michael Jackson was asked during his campaign for Prince George’s County executive if he had any regrets about the raid. His response: “Quite frankly, we’d do it again. Tonight.” Even when Chief High called Calvo to tell him that he had been cleared of any criminal suspicion, High made sure to explicitly tell the mayor that the call should not be interpreted as an apology. The statements from county officials over the next several months were also astonishingly callous. A day after he called Calvo, High told the press that the raiding cops showed “restraint and compassion” and insisted that they should be credited for not arresting Calvo or members of his family. (The only incriminating evidence found in the home was the unopened box of marijuana that the deputies themselves had delivered.)9 Months later, Prince George’s County executive Jack Johnson said something even more preposterous. He insisted that once Prince George’s County police agencies had cleared themselves, that was the only apology necessary—and in fact that they deserved praise for clearing Calvo’s name after nearly killing him. “Well, I think in America that is the apology, when we’re cleared,” Johnson said. “At the end of the day, the investigation showed [Calvo] was not involved. And that’s, you know, a pat on the back for everybody involved, I think.”10 On September 8, about five weeks after the raid, Sheriff Jackson’s office announced that his internal investigation had cleared his deputies of any wrongdoing. Everything was done according to procedure. Or, as Jackson put it, “the guys did what they were supposed to do.”11 Nine months later, Jackson’s office would conclude another investigation, again clearing his deputies. Neither outcome was surprising, given that Jackson had been defending his deputies since the night of the raid. It’s probably also worth noting that the father of Det. Shawn Scarlata—the officer who initiated the investigation leading to the raid—was on the internal affairs team that conducted the investigations.
The officials in Prince George’s County, two of them elected, openly and without reservation stated that they had no problem with the collateral damage done to the Calvo family. It was part of the war against getting high—which even they had to know is a war that can’t be won. They didn’t even really think it was something to regret or learn from, or to try to avoid in the future. As Calvo himself pointed out on several occasions, this isn’t a problem that can be laid at the feet of the police officers who raided his home. This problem can’t be fixed by firing the police involved. This is a political problem. It’s a policy problem.
Calvo understood all of this almost immediately. Someone sent him a copy of Overkill: The Rise of Paramilitary Police Raids in America, the paper on police militarization I had written for the Cato Institute two years earlier. A policy wonk at heart, Calvo devoured the paper, reading it on his subway rides to and from work. Still traumatized from the raid, his wife didn’t like the image on the cover—a close-up of a SWAT officer with his hand on a machine gun. Calvo then began reading up on the case law behind these raids. Within a few weeks, the charismatic, accessible small-town mayor had become a compelling advocate for reform. I moderated a forum about the raid at the Cato Institute in September 2008. As Calvo spoke about what he had gone through—and particularly about his dogs, and how angry he was that the police tried to blame the dogs for their own deaths—about a fourth of the audience was in tears. He told his story on CNN, the morning network talk shows, and the BBC. And to his credit, he recognized that what had specifically happened to him was part of a broader problem of policy, not of individual cops.
“The reality is that this happens all the time in this country, and disproportionately in Prince George’s County,” Calvo told CNN. “Most of the people to whom it happens don’t have the community support and the platform to speak out. So I appreciate you paying attention to our condition, but I hope you’ll also give attention to those who may not have the same platform and voice that we have.”12
As Calvo continued to advocate for reform, he started to hear from other victims of mistaken police raids, both in Prince George’s County and around the state of Maryland. Several included the routine, sometimes callous killing of the family dog. Within a week of the raid, for example, Prince George’s County residents Frank and Pam Myers came forward to say that they too were raided by sheriff’s department deputies. Indeed, that raid the previous November had been covered by some local media. When the couple told the deputies that the address on the warrant was two doors down, the police refused to leave. They continued to look around the couple’s house for another forty-five minutes. Then two shots rang out from the backyard. A deputy had gone into the backyard and shot the couple’s five-year-old boxer, Pearl. He claimed that he feared for his life. Pam Myers told a local news station, “I said, ‘You just shot my dog.’ I just wanted to go out and hold her a bit. They wouldn’t even let me go out.”13
Amber James, another Prince George’s County resident, also came forward. Police raided her home in May 2007 looking for her sister, who didn’t live in the house. According to James, when their search came up empty, they promised to return the next day—and to kill James’s dog when they did.14
A series of police raid horror stories from Howard County, Maryland, also emerged. Kevin and Lisa Henderson said they were the victims of a mistaken raid in January 2008. At 10:00 PM the night of January 18, a raid team opened the family’s unlocked front door. Inside were the couple, a twenty-eight-year-old houseguest, their two teenage sons, and their sons’ friend. The police first met the family dog, a twelve-year-old lab/rottweiler mix named Grunt. According to the lawsuit, one officer distracted the dog while another shot it point-blank in the head. When one of the couple’s sons asked why they had shot the dog, one officer pointed his gun at the boy’s head and said, “I’ll blow your fucking head off if you keep talking.” The police found marijuana in a jacket pocket of the Hendersons’ house guest. He was arrested. Four days later, after Lisa Henderson called to complain about the raid, she and her husband were also arrested
for possession of marijuana, even though the police hadn’t found any drug anywhere else in the house. Ten months later, a state judge acquitted the couple of all charges. The Hendersons believe that the police intended to raid a different house in the neighborhood that looked a lot like their own. A subsequent raid on that house turned up marijuana, scales, and cash.15
Karen Thomas, also a resident of Howard County, told a Maryland State Senate hearing in 2009 that police shot and killed her dog during a mistaken raid on her home in January 2007. Even after they had surrounded her in her bedroom, she said they still hadn’t yet identified themselves, and she thought the gunshot had been directed at her son. “In my mind, terrorists had just killed my son, and they were going to kill me next.” Boyd Petit told the same committee, “Our collective lives flashed before our eyes” during a mistaken raid on him and his family in April 2008.16 Mike Hasenei, his wife, and their twelve-year-old daughter were subjected to a nighttime raid when police received a tip that Hasenei’s stepson and a friend might have stolen items from a police car, including a rifle and ammunition. They also raided the home where the stepson actually lived, as well as the friend’s home. They found none of the stolen items and made no arrests. Hasenei and his wife Phyllis told the Baltimore Sun that they were still reeling from the trauma. “They had their guns drawn, Angel and I were screaming,” Phyllis Hasenei said. “They had their black-on-black uniforms. All you could see were their eyeballs.” Hasenei added that had police done a bit more investigating, “they would have found out that neither of us are violent criminals, we don’t have criminals records at all.”17
Armed with these incidents, Calvo went to the Maryland legislature to push for reform. The bill he proposed was modest. It required every police agency in Maryland with a SWAT team to issue a quarterly report—later amended to twice yearly—on how many times the team was deployed, for what purpose, and whether any shots were fired during the raid. It was a simple transparency bill. It put no limits or restrictions on how often or under what circumstances SWAT teams could be used.
Yet it was the only bill of its kind in the country. And it was opposed by every police organization in the state. One Maryland lawmaker attempted to amend the bill to prohibit the use of SWAT teams in cases involving known misdemeanors, a seemingly reasonable restriction. That measure was rejected after more lobbying from police groups.
But the main bill passed the Maryland house in March 2009 by a vote of 126–9, and the state’s senate in April by a vote of 46–0. It was signed into law by Gov. Martin O’Malley. Calvo sent the media a response to the legislation.
Although the botched raid of my home and killing of our dogs, Payton and Chase, have received considerable attention in the media, it is important to underscore that this bill is about much more than an isolated, high-profile mistake. It is about a growing and troubling trend where law enforcement agencies are using SWAT teams to perform ordinary police work. Prince George’s County police acknowledges deploying SWAT teams between 400 and 700 a year—that’s twice a day—and other counties in the state have said that they also deploy their special tactical units hundreds of times a year. The hearings on these bills have brought to light numerous botched and ill-advised raids in Anne Arundel, Baltimore, Carroll, Howard, Montgomery, and Prince George’s counties that also have had devastating effects on the lives of innocent people and undermined faith in law enforcement. . . .
Although I applaud lawmakers for passing this bill over the objections of law enforcement, I was disappointed that state law enforcement groups decided to oppose this measure rather than embrace it as an opportunity to restore the public trust. I remain especially concerned with the argument put forward that only law enforcement should police itself and that it is somehow inappropriate for elected leaders to legislate oversight and accountability. I cannot disagree with this argument more. As elected officials, we must take full responsibility for the law enforcement departments that we fund and authorize, and we must hold our law enforcement officials to the highest standards and ideals.18
By the following spring, the Maryland Governor’s Office of Crime Control and Prevention released the first batch of statistics. They were predictably unsettling. For the last half of 2009, SWAT teams were deployed 804 times in the state of Maryland, or about 4.5 times a day. In Prince George’s County alone, which has about 850,000 residents, a SWAT team was deployed about once a day. According to an analysis by the Baltimore Sun, 94 percent of the state’s SWAT deployments were to serve search or arrest warrants, leaving just 6 percent that were raids involving barricades, bank robberies, hostage takings, and other emergency situations. Half of Prince George’s County’s SWAT deployments were for what were called “misdemeanors and nonserious felonies.” More than one hundred times over a six-month period, Prince George’s County sent police barreling into private homes for nonserious, nonviolent crimes.19 Calvo pointed out that the first set of figures confirm what he and others concerned about these tactics have suspected: SWAT teams are being deployed too often as the default way to serve search warrants, not as a last resort.
In January 2011, Calvo settled his lawsuit with Prince George’s County. Although the details haven’t been made public, we know that it involved a substantial sum of money as well as reforms to the way Prince George’s County uses its SWAT teams, the types of cases in which the teams are deployed, and better training in dealing with the pets they encounter in raids, as well as treating them more humanely.20
HOW DO WE RETURN TO A MORE ROBUST EMBRACE OF THE Castle Doctrine, the Fourth Amendment, and an unbreachable divide between the police and the military? Overcoming a trend that has extended across two, possibly three, generations sounds like an impossibly difficult task. And indeed, some of the people interviewed for this book are skeptical that it can be done. Donald Santarelli, the now-regretful father of the no-knock raid, says, “I don’t think it’s possible to roll any of this back now. . . . It would take serious leadership, probably from nobody less than the president. It would take a huge scandal, which doesn’t seem likely. . . . But we’re not given to revolutionary action in this country. Each generation is a little more removed from the deep-seated concerns about liberty of the generation before. We just don’t seem to value privacy and freedom anymore.”21
Cheye Calvo’s example shows that change is possible—even though much more of it is in order. Despite falling crime rates, and even after the public outrage and media scrutiny engendered by the Calvo raid and other high-profile incidents, the number of SWAT raids continues to rise.
Still, even if the will to bend the arc of police militarization doesn’t currently exist, there are some policy reforms that would at least improve the current state of affairs. In particular, the concerned police officers and public officials interviewed for this book have suggested a number of possible reforms—some abstract, some concrete, some within reach, and some that at least at the moment seem unattainable.
The Drug War
To begin at the least likely end of the spectrum, the best reform to scale back the overly militarized, dangerously civil liberties–averse style of policing that prevails in this country would be to end the drug war altogether. Complete legalization is, of course, never going to happen. But even something short of legalization, like decriminalization, would remove many of the reasons why we’re fighting the drug war as if it were an actual war. President Obama’s drug czar, Gil Kerlikowske, at least seemed to understand the value of rhetoric when he made a point in 2010 of stating that he didn’t think it was appropriate to use the phrase “drug war.” Unfortunately, he didn’t change any of the actual tactics used to enforce the federal drug laws. As indicated earlier, the raids, grants, and giveaways of Pentagon gear have all only increased since Obama took office.
But just ending the federal drug war and the federal incentives toward militarization would help. SWAT teams would probably continue to exist and, at least in the short term, would find other, probably equally obje
ctionable missions. But ending the federal drug war could begin to unwind the violent paramilitary task forces and the us-versus-them, black-and-white drug-war mentality. If the federal government were to end the Byrne grants, cut off federal funding tied to drug enforcement, end the Pentagon giveaway program, and get rid of the federal equitable sharing program that lets local police departments get around state asset forfeiture laws and makes drug warring more lucrative (and therefore a higher priority), we’d see more of these tactical teams begin to disband because of the expense of maintaining them. We’d almost certainly see the multi-jurisdictional task forces start to dry up, since they’re often funded exclusively through federal grants and forfeiture. Those tactical teams that remained would no longer be incentivized to go on drug raids. Perhaps some still would. But without the money to lure them, it seems likely that the expense of deploying them would persuade police departments to reserve them for the sorts of missions for which they were originally intended.
At the very least, the federal government should respect the states that have already expressed a desire to ease up on the drug war and stop sending in heavily armed battle teams to raid medical marijuana dispensaries and growers who are licensed and regulated under state law.
Legislatures or city councils could also pass laws restricting the use of SWAT teams to those limited, rare emergencies in which there’s an imminent threat to public safety. They could prohibit the use of no-knock raids or even forced entry to serve warrants on people suspected of violent crimes. Failing that, policymakers could simply put more restrictions on search warrants. For example, they could prohibit the use of dynamic-entry tactics for any warrant obtained with only the word of an informant. The records of informants should be made available to defense attorneys and attorneys in civil suits, with the stipulation that any identifying information be redacted. (Informants’ records could simply be a set of numbers indicating their success rate.)