As Lou Hayes explained at Fault Lines, SWAT raids don’t have to be violent paramilitary adventures, even though the alternative would be “boring.”
What got us to the point where the surround-and-callout as a default tactic rather than the stereotypical “raid” entry? The research on human decision-making under stress. We learned how our own bodies and minds reacted to compressed time, fear, confusion, smells, noise, anxiety…as I had been affected on my first raid.
But what about the acute stress and fear we caused in those inside the homes we raided? How about waking up a family at 4:30 a.m. from a dead sleep? Could we expect the best decisions (think: compliance) from them? Or were we inadvertently putting them into a state of primal, animalistic, reactive, survival-mode decision-making too?
Does this seem remarkably obvious, that the shock, confusion and adrenaline could make for poor choices all around, putting everybody at risk? And yet, Lou suffers the slings and arrows of his fellow cops for suggesting that everyone survive the day rather than just the cops. Or more to the point, that this may well prove safer for the cops, even if there is a risk of losing some evidence down a toilet.
But then, what will they do with all those flash bang grenades? What use are toys if not to be employed as diversionary tactics? The Indiana Court of Appeals didn’t really give a damn.
While Officer Taylor testified that that the burn mark from the flash bang can be seen six inches inside the door, Detective Goergen testified: “I think you can see like the octagon shaped playpen, I know where the baby was at, it was very close to the door.” Other officers smashed in the kitchen window and threw a flash bang grenade inside that filled the kitchen with smoke and set off the smoke detectors. They handcuffed Watkins and took him outside to sit on the curb. They searched his house, breaking open a locked door leading to the laundry room in the process.
There were vague suggestions of a risk of violence from the targets within the home, but the cops couldn’t remember why. There was a claim by an officer that he looked in a door first, but that was belied by video. What the video showed was something very different.
The video shows almost no time lapse between when the door was battered in and the tossing of the flash bang. The door was barely opened when the flash bang was immediately tossed into the room, and the angle at which Officer Taylor was standing to the door did not allow him an opportunity to see what was inside the room.
And there, by the door, was the octagonal playpen with a baby inside. It’s not like this hasn’t happened before. The court held it shouldn’t have happened this time either.
Comparing the factors, we conclude that while there was a considerable degree of suspicion, the extent of law enforcement needs for a military-style assault was low and the degree of intrusion was unreasonably high. Under these specific circumstances and particularly in light of the use of a flash bang grenade in the same room as a nine-month old baby who was “very close” to where the flash bang was deployed, the State has not demonstrated that the police conduct was reasonable under the totality of the circumstances.
The line drawn, yet again, is the dreaded “reasonableness,” and with the qualifier of “under these specific circumstances,” the court held the “military-style assault” in general, and the use of the flash bang in particular, was unreasonable. Thankfully, the flash bang didn’t land next to the baby’s head this time, but it could have, not that the cop tossing it through the “barely opened door” cared.
One of the issues raised by Lou’s demurrer of the standard-issue military-style SWAT raid is that it’s all great when it works out, but what about when it doesn’t? What about when the “surround and callout” tactic results in armed occupants of a house shooting the police who have graciously chosen not to break down the doors and windows just in case. What if the occupants destroy all the evidence the cops are there to seize, because you gave them the opportunity be asking nicely for them to come out with their hands in the air? Haven’t you defeated the whole purpose of the raid?
While Lou explains that they’re not total blithering idiots by putting targets on their chests should they make the wrong call, he acknowledges that it’s a matter of discretion based on the facts and circumstances. If there is no reason to go in guns-ablazing, there’s no reason.
The absence of information doesn’t guarantee they will make the right call, but it also doesn’t place the lives of cops so far above the lives of others, of 9-month-old babies, that the same lack of reason to believe a military-style raid is necessary guides them to shoot first, just in case.
The Indiana Court of Appeals decision is important in two respects, that it affirms that there is a line of reasonableness which the police cannot cross without violating the Constitution, and that the remedy is suppression of the evidence they would have otherwise lawfully seized pursuant to a warrant. They rejected the inevitable discovery argument, which would have eviscerated any reasonableness limit and, even though it may have been unreasonable in some existential sense, allowed the cops to toss flash bangs at will and enjoy the fruits of their violence.
When is the line crossed? The opinion doesn’t draw a clear line, as reasonableness is as subjective and wavy as a line can be. But perhaps what can be read between the lines is that the lines is drawn at the edge of a baby’s playpen, and that there is a responsibility imposed on the police to figure out whether their tossing a grenade to protect their safety comes at the expense of a child. If so, the worst that can happen is their cool raid turns boring. And everybody lives to fight another day.