The 4th Circuit Court of Appeals, once considered one of the most conservative in the country, has moved to the left in recent years. But if you think that means it is showing a greater regard for individual rights and civil liberties, think again. According to a ruling the court handed down on March 13, the appropriate range of punishments for possessing a small amount of marijuana includes summary execution.
In 2005 (the wheels of justice can grind exceedingly slowly) the police in Cambridge, Md., acted on a tip and found a small amount of marijuana residue in a trash can. At 4:30 a.m. on May 6, a SWAT team executed a search warrant on the apartment of Andrew Cornish. A jury would later find the commandos failed to knock and announce themselves properly. As they rushed through the apartment, Cornish came out of the bedroom with a sheathed knife in his hand. The police say he advanced on them. One of the officers shot Cornish twice in the head, killing him.
Elapsed time: about 30 seconds.
Why did the police burst into Cornish's apartment in the wee hours, instead of simply showing up in the middle of the day and knocking politely? Not because Cornish was some big-time drug dealer. There is no evidence of that. What's more, he was on friendly terms with the officers who sometimes patrolled his neighborhood. No, that's just how things are done these days—along with handing out armored personnel carriers and other materiel of war to police departments big and small. Radley Balko writes all about it in his book, Rise of the Warrior Cop: The Militarization of America's Police Forces.
Cornish's father sued, claiming the police used excessive force and violated Cornish's constitutional rights. The first point was quickly dispatched with. (Lesson: Never bring a knife to a gunfight.) But as Balko points out in his Washington Post blog, on the second point the courts agreed. Not only that, "both the trial court and the appeals court that ruled against Cornish's father acknowledge both that the police violated the knock-and-announce rule, and that they lied about doing so."
Yet two out of three judges on the 4th Circuit panel (both George W. Bush appointees) decided nevertheless that Cornish bore all the blame for his own death. Other courts have reached similar conclusions in similar cases, you see—so that must make it OK: The police can break into your home unlawfully and shoot you dead, and nobody is at fault for that except you. Not only that, according to the court majority "no reasonable jury could have found that the Officers' knock-and-anounce violation proximately caused Cornish's death."
That is irrefutable, in the same way the no-true-Scotsman fallacy is irrefutable. If I say to you, "No Scotsman would shave his beard," you can show me countless cleanshaven Scotsmen. Rather than concede I was wrong, I can say, "Well, no true Scotsman shaves his beard!" The revision renders all your counterexamples irrelevant by definition. So while it's easy to imagine plenty of juries that might blame the police for Cornish's death, the court can simply write them all off by contending no reasonable jury would.
Balko goes into some important history about how we got here, and you should look up his piece if you're curious. With regard to the case at issue, he makes some other powerful points. For instance:
Cornish was somehow supposed to figure out that the people breaking into his apartment were police officers because they purportedly said so once they were inside. But the whole point of such dark-of-night raids is to disorient and confuse the residents so they don't have time to think carefully.
Moreover, the court says "according to the Officers . . . events in the apartment were so fast-moving and conditions for observation so poor that they could not discern—nor be expected to discern" that Cornish's knife was sheathed.
So under those circumstances a highly trained and fully alert SWAT team could not be expected to make the right choices. Yet an untrained man woken out of a sound sleep by loud intruders is supposed to be able to do so despite their failure to knock and announce themselves. In the court's view, Balko writes, "no reasonable person could possibly have been confused about the identity of the intruders, even though said intruders violated the requirement that exists for the purpose of assuring there is no such confusion."
But wait: Not only are we supposed to think that, we also are supposed to think no reasonable jury could possibly think otherwise. So Cornish has lost his life, Cornish's father has lost his case, and that's that. End of story.
The courts, including the Supreme Court, have granted wide latitude to police officers, partly because—they say—officers who exceed the scope of their authority can be held responsible through lawsuits.
Yeah. Good luck with that.