Last week Radley Balko described a Kansas case in which loose-leaf tea led to a police raid. One law enforcement officer saw someone shop at a hydroponics store, and another officer conducted trash searches at the shoppers' house and found leaves, and a "field test" suggested (falsely) that the leaves were marijuana, and it was off to the races with an armed incursion into the shoppers' home, which did not in fact contain any marijuana. A federal judge in Kansas recently ruled that the officers were entitled to qualified immunity in the resulting lawsuit.
Orin Kerr took Radley to task for his rhetoric and carefully reviewed the federal judge's order. The investigation may be bungled, Orin argues, but all the judge really did is find that an officer can rely on a positive field test for drugs in establishing probable cause, at least when the officer didn't know that such field tests are notoriously inaccurate.
Radley's perfectly right to be outraged. And Orin's perfectly right to note that Radley's outrage is directed at a feature, not a bug, of the system. Law enforcement has become increasingly bureaucratic, in the sense that actors are insulated legally and politically from the consequences of their actions, and those actions are treated as dictated by circumstance rather than chosen by accountable humans.
Consider, to start, the utter lack of accountability for taxpayer money displayed in this case. The whole case arise from "Operation Constant Gardener," a Sheriff's initiative to conduct marijuana cultivation raids on April 20th because that date is considered an "unofficial holiday among marijuana users." One officer was tasked to sit in the parking lot of a hydroponics store and take down license plates and pass those plates along to another law enforcement agency in a custom-made spreadsheet. Another officer matched those plates to individuals and addresses, and another officer evaluated which addresses to visit. Having chosen a suspect and an address, two other officers visited three times to root through the trash and look for evidence. Those two officers brought the "plant material" they found to a supervisor, in part because it was "hard to identify," to solicit his input. Upon a false positive "field test" for marijuana (though the material was actually tea), an officer drafted a search warrant, a deputy prosecutor reviewed and approved it, and seven law enforcement officers conducted an armed raid on the suspect's house. When the seven officers could not find evidence of marijuana cultivation, they extended the search for a couple of hours in an effort to find personal use amounts of marijuana. They found none. The Sheriff's Office later conducted a press conference bragging of the success of Operation Constant Gardener, presumably referring to other raids.
How much did all of that cost the taxpayers? Tens of thousands of dollars, at least. Was it worth it? Would it have been worth it even if law enforcement had found a private-residence-sized marijuana grow at the house? That's not a question you'll hear asked. The War on Drugs means never having to say "sorry I wasted your money." Certainly nobody who's paid to sit in a parking lot taking down license plates, or paid to raid trash cans and squint (quite literally) at tea leaves, or paid to devise cleverly-named gestures of defiance at marijuana users and then give press conferences about it, will ever ask that question. Financially, law enforcement is unaccountable.
They're also unaccountable in terms of basic competence. There was no incentive for the officers to learn, and know, that field tests are unreliable. What does it matter to them? They get paid whether or not they're reliable, paid whether the search turns up marijuana or tea. Moreover, they're insulated from any civil liability for relying on junk science. Nor do they have any incentive to conduct corroborating investigation. The officers here could have subpoenaed the house's electrical bills to watch for unusual consumption, a tell of indoor marijuana cultivation. They could have investigated whether the house has unusual foot traffic, or whether there had been any tips about the homeowner selling drugs. Faced with hard-to-identify plant material, they could have sent it to the crime lab for a test — after all, they had already waited seven months after the initial sighting of the suspect at the hydroponics store. But why do any of those things? The bar for probable cause is set extremely low — low enough that a visit to a hydroponics store and a questionable field test result on a small amount of leaves clears it. The small amount of leaves in the trash is consistent with mere personal use of marijuana, and some would argue that a seven-officer armed raid is a disproportionate use of law enforcement force to investigate such use, but nobody's asking about proportionality and nobody's being held accountable for the lack thereof. Why not just phone in your investigation, shrug at the result, and show up for a time-and-a-half raid on the dude's house? If a hypothetical officer could objectively conclude that there's enough evidence for probable cause, why give a shit about whether the person really did it or not?
When seven armed agents of the state raid your home at gunpoint in front of your spouse and young kids, it is traumatic. But arguably the homeowner should feel relieved that nothing worse happened. The officers didn't shoot the kids' pet dog, or mistake the X-Box controller in somebody's hand for a gun and shoot them, or stumble on a step and shoot someone, or shoot the homeowner when he reacted to what he might have thought was a home invasion robbery. The officers were relatively low-key — only seven officers, only one AR-15, no flashbang grenades thrown into a baby's crib to soften the place up first. Lucky! If any of those things had happened, it's likely that the officers would not have been accountable for it. The law usually doesn't hold them accountable for such "mistakes" in the course of a raid. And nobody even talks about holding them accountable for making the decision to conduct an armed raid on an occupied dwelling — a raid in which deadly mistakes are a distinct possibility — based on the aimless, good-enough-for-government-work suspicion that maybe they're growing pot in there. Nobody's asking whether the game is worth the candle — whether the known risk to lives is justified by the ends of the War on Drugs.
Nobody asks those questions because it's a bureaucracy, and you don't ask such questions in a bureaucracy. Asking questions might make you accountable, and the whole point of the law enforcement edifice is to insulate actors from accountability and to separate cause from effect. Someone chooses to harass marijuana users on April 20 to make a point and someone decides that you can find marijuana users shopping at hydroponics stores and someone decides that a field test of an unknown substance is good enough and someone decides to get a warrant and a family winds up held at gunpoint in their own home for drinking tea. These events are treated as if they are disconnected; nobody stops to say "the end result of this will be a man prone on the floor under the barrel of an AR-15 in front of his children, so act accordingly." Nobody's responsible, say the police. It just happens. I just work here.
Last 5 posts by Ken White
- No, Trump Didn't Argue That Protesters Have No Right To Protest or Violated His Rights - April 24th, 2017
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- The Road to Popehat: Spring Edition - April 17th, 2017