Nine years ago, Geraldine and her daughter, Caroline, Burley were the victims of a forced entry into their home by masked men. They later came to learn that the men were identified as Team 11. Radley Balko was on it years ago, and is still on it now.
Geraldine, now 70, pleaded with the man to let her move to the floor slowly, explaining to him that she’d had both of her knees replaced. Instead, another officer approached, grabbed her by the face, demanded that she “get the [f–––] on the floor,” then threw her into a table. She tumbled to the ground. At that point, she said later in a deposition, everything turned to “a fire, white and ringing in my ear.” Another officer came up from the basement with her grandson, stepping on her knees in the process. She cried out again in pain.
Were these dangerous felons in need of a “dynamic entry,” the euphemism preferred by police because it sounds so much better than any more accurate phrase, by a SWAT team to rid society of their violent crimes? Not quite.
According to the Burleys’ accounts, the officers who raided their home were clad in black. Some wore balaclava masks or face shields that hid all but their eyes. Others pulled their hats down low to shield their identities. They had also obscured their names and badge numbers. Once the Burleys’ house had been thoroughly searched, both women asked the officers for their names. After holding an impromptu meeting, the officers told the Burleys that they wouldn’t divulge any information that could identify them individually. Instead, they told the women that they had just been raided by “Team 11.”
They found no drugs, guns or other contraband, which is significant in that the raid produced no prosecution. Had there been a prosecution, the identities of the masked men would most assuredly be known. There would be reports, testimony, and prosecutors who could identify to the second who did what. But nothing was found at the Burleys’ home. The only information they had was “Team 11,” which, shockingly, turned out to be useless.
“Team 11″ didn’t actually exist. It was part of a Drug Enforcement Administration squad called “Team 6.” But for the Eight Mile operation, the team was partially split up and reorganized with members of state and local police agencies, then renamed just for that particular operation.
The Burleys sued for this raid on their home, the physical harm they endured, which might seem like a no-brainer. Except whom? The Burleys received a report naming DEA agents involved in the raid, except the agents all shrugged and said, “not me, sorry.”
In what came as a complete surprise to the Burleys’ attorneys, every agent named in the report denied participating in the raid. Instead, they claimed that “Team 11″ had actually been split into two on that particular day. One team raided the Burleys, while the other raided a home nearby. The agents claimed that the DEA report must have included the names of the wrong half of “Team 11″ by mistake. They were all in the other house.
And so, the Burleys’ attorney did the only reasonable thing he could do:
They deposed the other half of the team. You probably know where this is going. All of those agents also claimed to have been in the other house. No one denies that the Burleys were raided. No one denies that one half of “Team 11″ conducted that raid. But both halves of “Team 11″ insist it was the other half that was in in the Burleys’ home.
Had this been any private group of defendants, this wouldn’t have been a problem. Res ipsa loquitur, respondeat superior, all those cool Latin legal phrases. But this was the DEA, the government, and they’re special.
To file a civil rights lawsuit against law enforcement officers, you need to know the names of the actual officers. The courts won’t allow you to file a civil rights claim against a police or government agency in general. By the time the DEA agents sprang their surprise on the Burleys, the statute of limitations on their lawsuit had nearly run out.
To avoid the statute running, they filed suit anyway. After various unpleasant twists and turns, the Burleys argued for the application of a ruling from the 9th Circuit “shifting the burden” to the defendant to produce the identities of its agents.
This minimal burden shifting forces the police department, which is in the better position to gather information about the arrest, to come forward with some evidence of probable cause. . .. By shifting the burden of production to the defendants, we prevent this exact scenario where police officers can hide behind a shield of anonymity and force plaintiffs to produce evidence that they cannot possibly acquire.
Rational. Fair. Appropriate. But this was 9th Circuit precedent, and this wasn’t in the 9th, so U.S. District Court Judge Bernard Friedman said “nah.” The Sixth Circuit affirmed.
Under plaintiffs’ proposal, a law officer who raises an “I wasn’t there defense” can only avoid constitutional liability by mustering evidence of who was there instead, and by implication, who was responsible for the alleged excessive force. In other words, once a plaintiff has put forth some evidence of an officer being present at a raid in which a constitutional violation has allegedly occurred, that officer is presumed to be liable if he claims he was not there, unless he proves who was and who did it.
If you squint hard enough, this kinda looks logical. Except for the fact that the agents are merely the putative parties in interest, as the real culprit is the DEA, who will defend and indemnify the agents should a judgment be awarded against them, This rationale bootstraps the fiction that the agents are personally liable to deflect the obvious reality that the DEA knows, or presumably should have a clue, which of its agents raided the Burleys’ home.
So, at least some of the agents perjured themselves. All of them went into the home of two innocent women with masks, no identification, needlessly harmed them and concealed their identities. And the Circuit, to protect the government from the undue burden of telling the truth, ignores the Supreme Court’s admonition in Branzburg v. Hayes that “the law is entitled to every man’s evidence.” But then, DEA agents aren’t men, as their treatment of the Burleys made apparent.