On Saturday, I spoke with use-of-force expert Prof. David Klinger about that incident in Atlanta where an elderly woman shot police serving a no-knock warrant on her home, only to be killed when police returned fire. I sent Prof. Klinger some follow-up questions by e-mail after our talk on the phone.
Here’s a brief summary of what he said:
Prof. Klinger, an advocate of drug legalization, said that we don’t know enough about the facts to come to a conclusive judgment about the tactics employed. Prof. Klinger cautions people against jumping to hasty conclusions in this case, even now that new accusations have been made against the police.
The majority of our discussion took place on Saturday, and was directed at the topic of the tactics and wisdom of dynamic entries. However, I felt compelled to ask him about yesterday’s revelations, given their seriousness.
Yesterday it was revealed that the informant in the case claims police asked him to lie. Prof. Klinger agreed with me that this is bad news for the police regardless of the truth of the informant’s claims. The informant may or may not not be telling the truth, he said. If he is, the police should go to prison. If he’s lying, that’s still ample cause for an investigation of the police department’s history of dealings with this informant.
Regarding the tactics of the raid, he said that, based on what we know so far, the police probably did an inadequate job of scouting the location to learn what they were up against.
He says that regardless of one’s feelings about drugs, we have to enforce the law, and that includes serving search warrants in drug cases. Sometimes, those entries will have to be dynamic entries.
However, Prof. Klinger is, in general, an opponent of dynamic entries, and says that they should be reserved for situations where the people inside are dangerous criminals and where recovery of evidence is paramount to an investigation. (He notes that drug dealers are sometimes dangerous criminals.)
Although he generally opposes dynamic entries in the typical drug case, Prof. Klinger says that the alternate suggestion many are making — that police should in all cases simply knock on doors and wait on the porch for the occupant to answer — is a silly suggestion that will pose an unacceptable risk to police.
There is a third way, he says, that hasn’t been discussed on the blogs. He describes it in the interview, which is in the extended entry.
Prof. Klinger has made appearances on this blog here before, here, here, and here. He is an associate professor of criminology at the University of Missouri, a former LAPD officer, and an expert on use of force issues. He has been quoted in the L.A. Times with respect to these issues. He is the author of Into the Kill Zone: A Cop’s Eye View of Deadly Force, and has done federally-funded studies about officer-involved shootings and police Special Weapons and Tactics (SWAT) teams.
Prof. Klinger is also an unabashed advocate of drug legalization. You can read his argument in favor of legalization here. He says that, during his tenure as an LAPD officer,
I saw violent criminals walking the streets because the jail space they rightfully deserved was occupied by nonviolent drug offenders. When we carted small-time drug dealers off to prison, I saw other sellers quickly step in to fill the void.
I started to view most people involved with drugs either as broken souls who made self-destructive choices or as harmless people who indulged their appetites in moderation — not as crooks who needed to be punished.
In the end, we cannot protect free adults from their own poor choices, and we should not use the force of law to try. In a free society negative consequences befall people who use their freedom to do foolish things.
Victimless self-destructive behavior is its own punishment, not the business of the legal system.
However, Prof. Klinger said, he also firmly believes that society must enforce laws passed by a majority of people in our constitutional republic. And if we are going to enforce drug laws, he said, that means we absolutely must have well-trained police serving search warrants on private residences. Otherwise, criminals can evade the laws by simply conducting all of their transactions inside the home.
In determining what happened in Atlanta, Prof. Klinger said, we have to look at the entire panoply of possibilities. On the one extreme, perhaps the police were criminals who manufactured probable cause to enter the home, or complete idiots who didn’t do a sound investigation and went to the wrong house. On the other hand, perhaps they did everything right and the woman who shot them was a criminal who knowingly shot police.
Prof. Klinger thinks the truth is probably somewhere in between those extremes, but he doesn’t know for sure. He said it upset him that the post-mortems are being written before all the facts are in. He said that this is especially true in the blogosphere, where speed is both a strength and a weakness. In this case, he said, it’s operating as a weakness, because people are jumping to conclusions about what happened based upon 1) extraneous factors, like their views of the drug laws or police in general, and 2) an incomplete or distorted knowledge of the facts.
For example, he said, in my comments, the combination of 1) hatred for the drug war and 2) the presence of an elderly woman in the scenario was causing some people to throw aside reason and jump to hasty conclusions or make silly, unsupportable statements. (This is undeniably true. For example, there have been some people on my site and others who wish the woman had managed to kill one or more of the police. One commenter here said: “i only wish kathryn johnston had managed to kill at least one of them like cory maye did, but i still acknowledge her as a heroic martyr.” And a commenter at Reason said: “Part of me wishes Ms Johnston could have taken out those three cops before expiring, as a form of justice or a lesson.” Comments like that are irrational, because you’d have to assume that the police are engaged in criminal conduct — something that is far from clear.)
He said that yesterday’s revelations — that the informant in the case claims police asked him to lie about having bought drugs at the location — certainly should cause the public great concern.
If the informant is telling the truth, he said, these cops should go to prison, and the department and city will be facing the mother of all civil suits.
But even if the informant is lying about that claim, he said, that is still a cause for concern. Any time you have a lying informant, that provides cause to review the informant’s past history with the department. There will have to be an investigation of several factors, focusing on why the police thought this informant was reliable, what kind of investigation they did into his background, and the like.
My principal concern in speaking to Prof. Klinger was to discuss the tactics and wisdom of dynamic entries.
Regarding that issue, he said that — although he would like to know more facts — based on what he knows about the case, he suspects that the police tactics in this case were wanting. His primary area of criticism had to do with the apparent lack of advance intelligence on the location where the warrant was served.
Prof. Klinger said that some departments will simply serve a large set of warrants on numerous households, with seemingly no advance intelligence of the current situation inside the house. In such cases, the information forming the basis for the warrant may be days old. Prof. Klinger said that such tactics are a “recipe for disaster.”
For one thing, he said, if the information forming the basis for the warrant is current as of Tuesday, is it logical to believe that the narcotics will still be there on Saturday, 4 days later? Also, if you have no information about a suspected drug house in between the sale and the service of the warrant, that provides a huge opportunity for people to leave or enter the house. You end up having no idea who is inside when you serve the warrant. And that’s not safe.
Prof. Klinger said that, while it is common for the information forming the initial basis for the warrant to be several days old at the time of the service of the warrant, a warrant should not be served without active intelligence about the current situation in the target house. Police should watch the house for a period of time immediately preceding the service of the warrant, and keep a log of who goes in and who goes out. During their surveillance, they can look for telltale signs of narcotics sales activity (assuming it’s a search warrant for drugs), such as numerous people approaching the house, staying for a short period of time, and leaving. On occasion police will do a “pre-buy,” sending in an undercover informant to do a controlled buy of narcotics from the house.
Prof. Klinger said that such surveillance accomplishes several things.
For one thing, it generally helps the criminal case. You help ensure the bad guy is still in the house, who can be arrested on the spot. It makes it more likely that you’ll find illegal narcotics inside, and that you’ll arrest the people who have been selling them.
But more important, he said, are issues of officer safety. He said that when you serve a search warrant, by definition you are going into the criminal’s territory. And a cardinal rule of any martial profession is that, whenever possible, you don’t fight in the other guy’s territory.
For that reason, if you must go into someone’s home, you want to know as much as possible about who is present and what’s going on inside that home. You have to have your ducks in a row.
Advance surveillance is critical both for the safety of police officers and citizens. It minimizes the chances that you’ll walk into a dangerous situation blindly. For example, perhaps the drug dealers are currently getting their shipment from “Mr. Big” and his eight heavily armed henchmen. That would be a good set of arrests to make — but if you walk into that house not knowing that they’re there, you’re likely to get slaughtered.
Conversely, he said, a preliminary surveillance and/or controlled buy might lead to the conclusion that nobody is home — or perhaps, as may have been the case in Atlanta, that only innocent people are home, including elderly people and/or children.
At that point, he said, police discretion and judgment determines whether the warrant will be served. Is it worth serving the warrant when the bad guy is not there, and all we have present at the location are people who are probably not involved? The answer to that question, he said, depends upon a number of factors, and calls for the exercise of judgment based on experience. It’s very likely that, in such situations, police will opt not to do a dynamic entry.
Prof. Klinger said that, to evaluate the officers’ performance in this case, he would ask: did they have surveillance going in? Did they send someone to the door beforehand to scope out the situation? Based on the available information to date, the answer appears to be no.
Published reports indicate that there was a 3-4 hour gap between the drug buy and the service of the warrant. Yet, when police arrived, they apparently had no active intelligence about who was in the house. The bad guy was gone, only an elderly lady was home — and (as we learned on Sunday) only a small amount of marijuana was found in the house, which (we learned yesterday) is not the drug they were looking for. All in all, he would have preferred to see police keeping watch over the house during the period of time that they were obtaining the warrant.
I asked Prof. Klinger: when should police use a “dynamic entry” — in other words, break into a house to serve a warrant?
Whether you should execute a warrant with a dynamic entry, in Prof. Klinger’s opinion, should depend primarily on whether you are expecting dangerous people inside and recovery of evidence is a critical consideration.
If you are expecting dangerous people inside, a dynamic entry is the way to go. Prof. Klinger explained that there is a logic to the idea of a dynamic entry, and it’s not simply to preserve evidence. The idea is to avoid a violent confrontation by overwhelming the occupants of the house. You want the occupants thinking: I’d better submit to this force, because any failure to do so will likely result in my demise.
I noted that several of the commenters on my site have suggested that it is the very confusion of a dynamic entry that causes the danger. Many of these commenters have suggested that the police simply knock politely and wait on the front porch for the occupants to answer.
Prof. Klinger said that can be very dangerous for police. It works well when the people inside are completely innocent, he said. But the vast majority of the time, the occupants are not innocent.
If police officers execute a search warrant on a house occupied by criminals, he said, those officers would be greatly heightening the risk to themselves if they simply knocked and stayed on the front porch. In fact, he said, if every single time the cops went to serve a warrant, they were hitting a house where they knew the people inside are bad actors, it would be utterly ridiculous to have them simply stand there on the porch, knock, and wait to show a warrant to a person answering the door. By doing that, police would lose all the advantages of a dynamic entry. Basically, they would be “sitting ducks” on the porch — standing there with no cover, speed, surprise, disorientation, and overwhelming force.
Contrary to the supposition of many commenters, Prof. Klinger said that these factors — including disorientation — are part of what makes a dynamic entry safer than simply knocking on a door and waiting on the porch. Of course, this assumes that you’re making the entry with people in the house who are dangerous, and might want to shoot at you if you’re just sitting there on the porch.
Prof. Klinger said that, while the debate appears to be between dynamic entries and a polite knock on the door, there is a third and better option that he prefers in most cases. It is called “contain and call-out,” and he hasn’t seen it discussed on any of the blogs.
The idea is this: you set up a perimeter so nobody can get away, and have the police take up secure positions surrounding the location — hiding behind barriers so they can’t be shot. Then someone gets on a bullhorn (or makes a phone call into the location) and tells the occupants that police are there to serve a search warrant, and that they need to come out of the house.
Prof. Klinger acknowledged that when police use this approach, they lose evidence. If the house contains any narcotics that can be flushed, you can be certain that they will be flushed — especially as the use of this tactic becomes widely known by criminals. But, he asked, the question is whether it’s worth risking the lives of police officers (and possibly of innocent civilians) to go after dope. He said that, around the nation, many police departments are concluding that it’s not worth it to do dynamic entries in most drug cases — at least cases where police have no reason to suspect that the drug sellers are violent.
Prof. Klinger said, if you know you have a truly violent criminal inside, a dynamic entry may be worth it. There was a period of time when some drug dealers from Jamaica were murdering people as a routine aspect of their drug business. He said, for people like that, if you lose the chance to arrest them because they flush the drugs, that’s a real loss. In such a case, maybe it’s worth it to do a dynamic entry. In that case, you want a well-trained crew with upgraded body armor who is going to take them down and win a gunfight if necessary. But, he said, save those tactics for the bad, violent guys. Sure, a lot of arrests will be lost. A lot of drug dealers will skate. But in his opinion, it’s not worth the risk to lives to do a dynamic entry in the typical drug sales case.
If you’ve decided to do a dynamic entry, Prof. Klinger said, you have to take care to do it right. You have to have a tactical plan.
One of the most critical elements of such a tactical plan is to make sure the occupants know that the entry is being done by the police. It is incumbent on police to make it clear to the occupants inside that they are the police. This is true regardless of whether the people inside are bad guys or not.
For example, he said, take the situation where the people inside are dope sellers. If they are dope sellers, some will resist violently, but most are generally likely to submit to police authority. If, on the other hand, they think that the people breaking into their home are robbers looking to rip off their stash, they are more likely to respond with force. The reason is that they know that the police won’t deliberately set out to murder them, while other crooks might. So dopers who are worried that the people entering their house are robbers might well shoot it out, whereas they would likely submit to police force.
A buddy of Prof. Klinger’s who works on a SWAT team in Texas told Prof. Klinger that he agrees with this. According to that SWAT team member, when occupants of a house shoot it out with people breaking in, it’s often because they think they’re getting ripped off.
Now, take the contrary example: where the occupants are completely innocent. The same reasoning applies with even more force in that scenario. If you have a house occupied by people who are innocent, they are often confused when police try to break in to their homes. They don’t understand what is going on. Innocent people would normally have no reason to shoot at police, but have every reason to defend their home against potentially unlawful intruders.
For these reasons, good police work diligently to avoid such situations, he said, by doing everything they can to identify themselves as police.
In the Atlanta case, Prof. Klinger would want to look at various factors to see if it was clear that the people outside were police. Was there a marked squad car out front? You’d want to see one.
Were they clear about announcing their presence? When the police break into a home, everyone must say the same thing. It doesn’t work if one officer is yelling: “LAPD!” and the next is yelling “Los Angeles Police Department!” and the third is yelling: “Police Department!” This results in a cacophony of voices, and the person inside may end up hearing nothing but yelling. How did the Atlanta police handle this?
I asked Prof. Klinger about reports such as this one, which says:
The police raiders were not in uniform, but wearing navy blue T-shirts and “raid shields” emblazoned with the word “Police”.
And this one, which says:
[Assistant Chief Alan] Dreher said Johnston should have recognized the men as officers even though they were not wearing uniforms. He said all three wore bulletproof vests that had the word “Police” across the front and back. He said they shouted they were police as they burst through the door.
He said that anything these officers did to identify themselves as police is a positive. If the police were wearing raid vests, that’s good. The police should do everything they can within reason to identify themselves as police. Ideally, you want marked police cars outside, lights going, sirens sounding — the works.
(I will add as an aside that I am not certain that I necessarily believe the Police Department about these matters. They have misstated so many critical things to the public about this incident, it’s hard to trust anything they say.)
I noted that my commenters are repeatedly arguing that it doesn’t matter whether people invading your home claim to be police or not, because some robbers do home invasions posing as cops. (This is something I know to be true because I have handled such cases myself.) But Prof. Klinger agreed with me that robbers also pose as cops conducting traffic stops. That doesn’t mean citizens can shoot at a cop at a traffic stop.
Prof. Klinger said that it would be anarchy to argue that citizens may shoot at cops executing a search warrant because of the remote chance that they might be criminals posing as cops. Turn the tables on that logic, he said. Police are shot all the time, in situations that initially appear innocent. Are we now going to turn cops loose to shoot in seemingly innocent situations, just because those situations could be dangerous, in a freak scenario?
Prof. Klinger said he doesn’t know for sure, but his bet is that the Atlanta cops who served this warrant had no sound tactical plan. The bottom line is that they probably didn’t have their ducks in a row, starting with having some idea who is inside.
Prof. Klinger said he would really like to know what the Atlanta police’s tactical plan was. He explained what some of the various options include. One of the techniques is called “break and rake.” The police go to a window of a house where they don’t intend to enter, break a window, and rake the glass away. This technique causes a distraction; the members of the household have their attention drawn to the area where the window is being broken, and they don’t notice when the police swarm in through the chosen point of entry. Flashbang grenades are also sometimes used in parts of the house as a distraction device.
If you’re going to do a dynamic entry, he said, you have to consider these options.
There are some fine-grained issues that can’t be resolved in a uniform manner. For example, something like the use of shields by officers should be left up to the individual officer. Some officers feel better if they are more mobile. If you carry a shield, you can only carry a handgun. Some officers feel they’re safer with shoulder weapons instead of the handguns they’d be required to carry if they carried shields.
In the end, Prof. Klinger reiterated, most of what cops should be doing to prepare for the execution of a search warrant makes it safer both for them, and for the citizen inside. He also advises cops to remember that, unless they’ve already developed probable cause to arrest a suspect, then in most of these cases they are merely conducting an investigation. That’s how the occupants of the house should be viewed and treated — not as criminals, but merely as people under investigation. If those people use force, it’s obviously appropriate to use force in response. But the occupants should always be treated respectfully, and police should remember that they are simply people under investigation.
Prof. Klinger also emphasized that a “dynamic entry” is not totally congruent with a “no-knock warrant.” No-knock warrants are obtained when police can articulate why knocking and announcing their presence in advance would unnecessarily jeopardize officer safety, or materially impede the investigation. But many warrants require knocking in advance. The thing is, police will only wait so long — and are required to wait only so long — before they execute a dynamic entry even with a warrant that requires knocking in advance.
How long must police wait? There’s no definite rule. In the 2003 case of United States v. Banks, 15-20 seconds was held long enough. In last year’s Hudson v. Michigan decision, the parties all assumed that 3-5 seconds was too short. He said that, in the service of most of these warrants, you’d have to answer your door quickly, or it will be broken down. But the fact is, he said, in most of these cases, the people inside are criminals — and in most cases, they’re not racing to the door to answer it. So police end up doing a lot of dynamic entries.
Prof. Klinger said that it is extremely rare for there to be shootings in dynamic entries. Tens of thousands of narcotics search warrants are served every year, and only a handful go wrong. The situations where things go wrong don’t necessarily tell you much about the usual situation.
Regarding the shooting in this case, Prof. Klinger wondered: how do three guys get shot in a situation like this? He said that his initial hypothesis is that the cops were thinking: I can’t shoot this old woman. Then, she starts shooting at them, and they start to get hit, and they realize that they’d better take care of business, or they’re all going to end up dead. This is the hypothesis discussed in this post, which presented a link to a video of a 72-year-old man who murdered a police officer who probably took too long to react because of the old man’s age.
But that hypothesis is not the only one, he emphasized, and until we know more about the facts, we can’t know for sure what happened. One possibility, he said, is that the police might not have known who was shooting at them. For all we know, the woman could have opened fire through the door. The police might not have known who was firing at them.
Another possibility is that one or more of the police officers was hurt by friendly fire. Once bullets start flying, Prof. Klinger said, undisciplined tactical teams often engage in bad tactics, and even well-trained teams can have errors. Sometimes these result in cops shooting each other. In particular, Prof. Klinger pointed to a well-known case in Los Angeles involving L.A. County Sheriff’s Deputy Richard Arruda, who was struck in the neck by friendly fire in a situation where a suspect was shooting at him and his partner. Such a scenario can’t be ruled out in the Atlanta case, Prof. Klinger said.
I asked him by e-mail about the number of shots fired by the police. I haven’t seen a published report that gives a true number, but my commenter steve, who seems pretty plugged in, claims to be aware of reports that there were allegedly over 90 shots fired. I am wary of accepting assertions as true without seeing proof. But I asked Prof. Klinger to assume the truth of that allegation just for the sake of argument. Could that possibly be proper? His response by e-mail:
[I]f the cops fired 90 rounds, I can’t picture a scenario where that’d be kosher. The only thing that makes any sense at all in terms that many bullets is that there were more than 3 officers firing, and that some of them were engaging in suppressive fire to cover the retreat of the officers who were shot trying to make entry. (Suppressive fire is a delicate thing that must be done with great discipline and care. Not just firing blindly. A topic unto itself that’d take some lengthy discussion, so I’ll stop here). If it was just three officers who shot, then we have other issues: What were they shooting at? Did they have a positive ID on the shooter? Were they shooting through some barrier (furniture, walls, etc)? Did some (or all) of them reload? Whatever the case re: N of officers, 90 rounds in a gunfight with a single person armed with a single gun does not sound right. We’ll have to see what the investigation shows before passing judgment on how out of round the shooting was.
There are so many unanswered questions about the whole case, Prof. Klinger said, that it’s really irresponsible to come to any firm conclusions about the officers’ behavior without more facts. For example, he said, is it beyond the pale to believe that an elderly woman could be involved in illegal activity? It certainly would be unusual, but not impossible, as so many seem to assume. (I will add as an aside that Curt at Flopping Aces has a post which, in the update, tells of a 91-year-old bank robber.
He’s serving 12 years in prison. Unusual? Sure. Impossible? No.)
(As another aside, I will say that in this case, with the new relevations that keep coming out — including the small amount of marijuana found, the accusations made by the informant, and especially the numerous misstatements of fact by the police as to several key aspects of the case — it now seems terribly unlikely that the woman was a criminal. But the possibility can’t be completely ruled out.)
Prof. Klinger said that the vast majority of cops don’t want to shoot anyone, and risk their own life and limb. In fact, recent studies show that cops are more fearful of getting sued than they are of getting killed. He said that working LAPD 77th Division, he realized that early on. Time and time again, he saw cops who had chances to shoot people in situations where it would have been fully legal to do so, but the cops didn’t do it — at considerable risk to their lives and those of their partners.
Turning briefly to the topic of drug legalization:
Prof. Klinger added: most of these people commenting on my site who are complaining about the war on drugs have probably never lived next door to a crack house. As an aside, I wholeheartedly agree. When I have done trials on drug sales cases, I invariably visit the scene with the arresting officers. More often than not, citizens in the area come up to us and complain about the drug houses in the area. You cleaned this one up, they say, but there’s another one down the street. It ruins the neighborhood, they say. It’s hard not to take drugs seriously when you meet people affected by them.
Still, Prof. Klinger, an opponent of drug laws, believes that legalization would clean up the violence associated with drug dealing — to some degree. But he cautions that it would not be a panacea. It would not take care of all the violence to legalize drugs. Many drug dealers would turn to some other kind of crime. Drug dealers are not wonderful, civic-minded human beings, he said. Many of them will find some way to make money through criminal activity.
I asked him by e-mail about the idea (advocated by Instapundit in this post) of videotaping the service of search warrants. He responded:
I agree completely. That is something that leading police trainers have advocated, and switched on entry teams have been doing, for many years now (well over a decade). What they show is the cops doing the right thing the vast, vast majority of the time. And the taped shootings that I’ve seen show clear-cut justification for what the officers did. On the other hand, people need to understand that video won’t catch everything and, consequently, that taping will not completely solve the problem of controversial shootings.
This post does not necessarily reflect my own attitudes toward the drug war or dynamic entries. I have done my best to convey the opinion of someone who has thought about the issue for quite some time and has expertise in the area. I hope this has been informative.