Wednesday, October 12, 2016

Henn. Co. Dist. Ct. Judge Pushes Back Against Over Militarized Police Tactics

In a growing number of cases around the country courts and judges are starting to push back against civilian police departments' over their use of military tactics and equipment formerly associated with the battlefield and foreign wars.  Since 9/11 the United States has witnessed a prolific increase in the use of specialized weapons and tactical teams to the point where what was intended to be used in very rare hostage type situations has through mission creep become the norm for mundane search warrant executions and drug raids. 1

A recent case from Hennepin County District Court which came to my attention by way of a Minneapolis Star Tribune article by Brandon Stahl is a perfect example.  In a trial court order dated July 16, 2016 and attached memorandum of law, Hennepin County District Court Judge Tanya Bransford found "...although the search warrant was supported by probable cause, the no knock provision met the requirement of reasonable suspicion, and the threshold reappraisal was sufficient, the manner of the execution of the unannounced search warrant was unreasonable due to the military style tactics used to execute the search warrant."  State of Minnesota v. Power, Hennepin County District Court Trial Order (July 16, 2016).

In Power, a Confidential Informant had provided detectives with the name and phone number of a house guest staying at a residence in Minneapolis who was allegedly selling marijuana.  A subsequent trash pull within 72 hours yielded packaging material and small amount of marijuana (which is a petty misdemeanor in Minnesota).  A property tax search of the address provided by the CI showed the property was owned by the mother of a Michael Delgado, who was on probation for a DWI and had a permit to carry a handgun.  Based on Power's criminal history which included a Fifth Degee Controlled Substance conviction for possession of marijuana and the property owner's son's license for a permit to carry, the detectives requested a "No Knock" warrant and enlisted the assistance of the Hennepin County Sheriff's Emergency Services Unit, something supposedly reserved for high risk and/or hostage situations.

Judge Bransford described the execution of the search warrant in her memorandum as follows:
"The morning of the execution of the search warrant, 18 ESU officers and 10-14 task force officers were briefed. The 18 ESU officers then dressed in riot gear. There were no last minute changes to the plan. The 28 to 32 ESU and task force officers took pre-planned routes to the Residence. The streets were blocked off after waiting to make sure there were no school buses in the area. Since there was a front door and a side door on the Residence, ballistic bunker operators deployed flash bangs, which broke the windows, and then two battering rams were utilized to break the doors. Officers announced themselves by saying, "Sheriffs Office, search warrant," prior to breaking the doors. Several of the ESU officers carried M-4 assault rifles, while wearing military style vests and helmets. The rifles were pointed at the individuals found in the house. "Bear," a tank which holds a sniper, a driver and a cover team member, was used in the execution of the warrant."

During the course of the warrant's execution, "Officers located three adult males including Mr. Power and Mr. Delgado, two loaded handguns, and 221.59 grams of marijuana."

Cases like State v. Power in Minnesota and the Eleventh Circuit's decision in Berry v. Leslie
767 F.3d 1144 (11th Cir.), order vacated pending rehearing en banc, Berry v. Orange County, 771 F.3d 1316 (11th Cir. 2014), subsequently dismissed as moot, Berry v. Orange County,C.A.11 (Fla.)May 08, 2015785 F.3d 553, pose interesting questions for society concerning the use of military style tactics and equipment in civilian law enforcement and their legality.  With the increased scrutiny of police departments and rules of engagement including the use of lethal force one questions whether a militarized police presence is only contributing to the problem.

In the Phillipenes where they recently elected a President who ran on the promise of ending his country's drug problem, it is estimated that 10,000 people have died in just a matter of months at the hands of police and extra judicial killings all because of the exhortations of President Duterte.  Is this the trajectory we really want in the United States if God forbid, a demagougue like Donald Trump were elected?

"The number of specialty police units--and the frequency of their use-- expanded in the 1980s to meet the needs of the war on drugs.15 Today, seventy-nine percent of SWAT team deployments  are for the execution of a warrant, most commonly in drug investigations.16"

Cadman Robb Kiker III, From Mayberry to Ferguson: The Militarization of American Policing Equipment, Culture, and Mission, 71 Wash. & Lee L. Rev. Online 282 (2015) citing
See Peter B. Kraska & Victor E. Kappeler, Militarizing American Police: The Rise and Normalization of Paramilitary Units, 44 Soc. Probs. 1, 7 (1997) (explaining that paramilitary police units (PPUs) expanded to being used for “high risk warrant work,” which is almost entirely drug raids).

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