I agree with Kerr's analysis of the legal issues at hand. He knows far more about the law than I do, so I must defer to his expertise. He is technically correct. And it's good to have an accurate analysis of current law.
But Kerr misses the spirit of Balko's original article. Kerr is saying that the officers did not violate the rules of the game. Balko is saying the rules are absurd and the game needs to change. Both authors are correct.
Additionally, the original title reads: "Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home". This is mostly correct. If the officers had not misidentified plant material, and if they had not been monitoring innocent shoppers, this incident would not have occurred. Only in the upside-down world of the drug war is it normal to send government agents armed to the hilt to invade a private residence and hold the occupants at gunpoint, all based on flawed and flimsy evidence.
There is no justification for SWAT teams being used to chase down non violent suspects. It is just part of the over militarization and RAMBO mentality of too many police forces. When the cops kill more Americans than terrorist it screams "you have a problem".
I think there is an often overlooked proportionate argument. Which is not only should punishments be proportional to the crime committed. But enforcement efforts should be as well. Personally I don't see why the courts should shield the cops from liability when they are obviously being sloppy. Seriously if cops going to bust down someones door and point guns at them then they need to dot their i's and cross their t's.
Personally I think a lot of Judges came of age during the Dirty Harry era. We won't see much change until death and senility removes them from office.
None of these things are a problem in Washington state, where marijuana's legal.
In my personal experience, nothing's changed in Washington safety-wise. Only difference is that sometimes you'll catch the scent of a stinky plant someone's lit on fire.
As long as marijuana is illegal at the Federal level, it isn't legal in any state of the Union.
People can think it's legal. People, even law officers, can act as if it's legal. However, all it takes is one Federal case and all of a sudden the law against it actually matters, and on that day saying it's legal in your state won't amount to diddly squat.
State-level legalization efforts are like straw polls: A way to see which way the hot air is blowing. A way to see what the public as a whole thinks of marijuana laws. They are not, however, as binding as people seem to imagine.
These laws are definitely binding on the state and local level, where most drug policing is done. Think low-level possession of small amounts. Which, having been decriminalized, means a marijuana user doesn't have to fear the officers that they are far more likely to interact with.
Still, there is absolutely a need for reform on a federal level, even if it's just a law that provides an exception for states with a legalization regime. Otherwise I think you're mostly right. Prosecutorial discretion is the only thing that prevents the feds from swooping in at any given moment.
>However, all it takes is one Federal case and all of a sudden the law against it actually matters, and on that day saying it's legal in your state won't amount to diddly squat.
1. Are you suggesting that states will start enforcing federal drug laws if a resident in a legal state is brought to court?
2. Are you aware that the DEA has done countless raids in California?
3. Do you think that this particular incident and the concerns it raises is a local law enforcement issue, or do you imagine that the DEA operates by going through people's trash for tea leaves?
> The judge ruled that officers cannot be held personally liable for searching a home with a warrant based on two positive field tests for marijuana... at least when the officers did not know about the risks that the field tests results were false positives.
So then who is responsible when police are using equipment that is not reliable? Surely some un related third party performs tests on all the testing equipment, and it must be a accurate to a certain degree before it's approved for use...?
You're misunderstanding reality. The simple fact is that these tests are not designed to detect drugs. They're designed to give the police a pretext to search you, whenever they wish to do so, while pretending to obey the law. How do we know this? If they were designed to detect drugs, the fact that they're very poor at doing so would be seen as a problem. It isn't. Therefore, they're designed for a different purpose.
See also breathalyzer, "drug detecting" dogs, field sobriety tests, visual estimation (without radar) of traffic speed, etc.
The article itself mentions the drug tests used in the field coming up as positive for cocaine through just air exposure.
Here is another that confirms the same thing happens upon air exposure to certain methamphetamine and marijuana field tests[0].
Point is that this abysmal false positive rate is that it's too convenient and the incentives are too high when it comes to maintaining an inexpensive shield for officer error / instant probable cause compared to court costs.
Keer's article is uncharacteristically misleading. He twice implies that the police officers were at personal risk of having to pay damages. Though this is a fiction that the courts gleefully embrace it is nonetheless a fiction. Indemnification of police officers is universal, even in cases of willful misconduct and even in cases where written law suggests otherwise.
The other thing I would note is that qualified immunity and associated doctrines, which are near insurmountable obstacles to civil justice against police officers, are judge created law that can, and should, be sharply reined in by Congress.
"The other thing I would note is that qualified immunity and associated doctrines, which are near insurmountable obstacles to civil justice against police officers, are judge created law that can, and should, be sharply reined in by Congress."
Just curious, I know nothing about qualified immunity, what is it and why is it a problem?
I took an entire class on §1983 in law school, I'm not going to be able to do justice to it in a comment. But the long and short of it is that there are a series of judge made doctrines that put a giant thumb on the scale when you sue a police officer for violating your constitutional rights.
Among many other things you must show that the right in question was "clearly established". But the courts have lately been requiring a case with a nearly identical fact pattern in order to find that a violation of a clearly established right. Worse yet, they have been taking the questions out of order and deciding that a right is not clearly established without deciding that there is a constitutional right in the first place. Which in turn means that that case can't be used as precedent for someone else.
Imagine how much time and money would be saved if we didn't all have to spend our hard-earned wages funding ridiculous witch-hunts like this. Officers staking out a house and rifling through the owner's rubbish for a plant? It's OK, though, because the plant was one kind of plant, not another kind.
I agree with your sentiment as far as marijuana is concerned (and really all drugs), but the "it's just a plant" argument isn't solid in general. For example, if the police had evidence of a surreptitious castor bean grow room, and evidence of something being chemically extracted from the plant material, I think that may be enough to justify a search warrant to determine what's going on. Of course that evidence would have to come from someone capable of telling the difference between castor beans, tea leaves, their ass, and their elbow.
Well, that is kind of what the judge said by ruling that the police don't have to understand the limitations of their tests. So if a test has a false positive on tea, then when they want to bust a tea drinker, they only need to pull out that test and claim they weren't aware of the limitations of the test. They can keep a whole suite of tests in their suitcase, ready to pull out the one that has the most likelihood of getting a positive result for the suspect that they "know" did it.
I'm no pothead, but I think I could tell the difference between wet tea leaves and pot just from the smell.
Mr. Kerr, your story is about the Law not Justice. The first story was about Justice and how the couple didn't get any. Both are good.
What happened to "Protect and Serve". When did it become "Spy and Horas".
Why has judging become about convicting and not at all about justice. Why can the judge not say "I see ignorance and ambition" (as we all do). Think of it like manslaughter not murder. (Like you drive on bald tire, one blows, you run over a pedestrian. You didn't mean to kill them but you're still responsible.)
I smell a case where the couple could sue the drug testing company for not informing more about false positives. Or, if they do, the police for not reading them.
> There is no basis to conclude, then, that Deputy Burns or Deputy Blake should have known that the field test kits they were using tended to yield false positive results.
How does the deputies claiming they had "no knowledge", were "not aware" or have had "thousands" of other tests used with no issues absolve them? How is the burden of knowledge not squarely on their shoulders as they are the agents administering the tests and submitting them as evidence to the court?
The judge's ruling ( https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2013cv2... ) hinges on his statement on page 13 that "a reasonably trustworthy field test that returns a positive result for the presence of drugs is a sufficient basis, in and of itself, for probable cause."
Given the established accuracy of the field test used, no sane and honest person would ever claim it is "reasonably trustworthy", making the judge's claims moot.
Yeah. This article seems really to just be saying that the reality was more nuanced than the headline of the original article (which I stumbled upon and posted here on Monday). But of course had you continued reading past the headline of that article, you would have drawn the same conclusion.
I do appreciate the additional information about the situation that was covered in this article, though.
And the top-rated comment there, by jimrandomh, is still the first and last word on the matter as far as I'm concerned, even in light of the WashPo's editorializing:
"There are only two possible reasons for a police department to be using a test like that [with a known 70% false positive rate]. The first is ignorance, but of a degree and nature that is quite scandalous. The second is to commit fraud upon the courts, by claiming to have evidence of drug possession where no drugs exist. In light of the FBI hair test scandal (https://www.washingtonpost.com/local/crime/fbi-overstated-fo...) I think the latter explanation is fairly likely."
The key words there are "police department." I agree 100% that a police department should be held accountable for using a test that appears to be about as useful as a Cracker Jack decoder ring. But this case was about the officers' personal liability. As the article points out, the legal question here was "Could a reasonable officer believe he had probable cause?" Whoever chose this particular test should be held liable—not the people who got it off the shelf and followed the directions on the box.
But I would note that the plaintiffs are suing the "Board of Commissioners of the County of Johnson County, Kansas et al." [1], not officers Joe Blow and Bob Smith.
Agreed. I think it can be fairly argued that the officers in question did not, in fact, know how shitty their field test was. Unfortunately it could just as fairly be argued that they did know and would gleefully make use of an investigative tool they knew was faulty at every opportunity just because it increases their odds of making an arrest (and then lie about it).
As far as ignorance goes, check out this fascinating quote from the judge:
"In fact, as plaintiffs point out in their submissions, Deputy Burns testified that, at the time he tested the plant material he discovered in plaintiffs’ trash, he had no knowledge that anything other than marijuana could test positive on a marijuana field test kit and that he was “not aware” of the possible occurrence of false positive test results. Deputy Blake’s testimony on those issues is substantially the same. Moreover, Sheriff Denning testified that, since he came to the Johnson County Sheriff’s Office in 1978, the Office has conducted “thousands” of field tests and the only false positive results of which he is aware are the results at issue in this case."
Apparently the judge is under the impression that this justifies his ruling, rather than damns both him and the entire police department.
> the Office has conducted “thousands” of field tests and the only false positive results of which he is aware are the results at issue in this case.
I'd imagine most cops know what marijuana smells like and use the field test to back up their correct observations. I imagine they do very little testing of other random things to see what causes a false positive. We need better statistical education for the legal profession.
Some Volokh asshat excusing authoritarianism for... nuances. Yes, the effect of the ruling was to make tea-drinking probable cause. Yes, when no-neck cops sniff and poke at plant matter, they are likely to be wrong, and biased in their wrongness. Yes, all these asshats should lose their careers in law and law enforcement.
Journalists should be educated on effects of false positives even at low proba (which is not even the case here) on random investigations.
Actually, police and justice should be, but when they are not at least we should hope that journalists are.
So maybe technically the original title about the SWATing because you drink tea was not 10000% accurate. Does not matter. They were swatted because they drank tea and grow hydroponic stuff -- no need to invoke "insight"; this is just a fact; and this suffice largely in itself to illustrate there is a big problem in how police do their work.
Point completely missed: the officers should have known that the field test they used had a high false-positive rate, and should have taken a sample back to be tested by more reliable means. Either they're lying about being ignorant of the fact that the test is unreliable, which should be grounds for throwing those claims away when testing if the warrant showed probable cause, or they actually were ignorant of the test's unreliability, in which case they (or the person in their department who approved the test for use) are recklessly incompetent.
I completely agree. The federal judge did in fact rule that "drinking tea and shopping at a gardening store amounts to probable cause" when he made this ruling. First of all, there is no reason for these police to be relying on field tests when conducting a SWAT raid which was planned and calculated weeks in advance. Secondly, as you pointed out, the judge ruled that these police are in no way responsible for ensuring that there's any reason to believe these tests work at all. A user in the other thread pointed out that problems with these tests have been known about for years. What evidence did these police have these tests actually detect drugs, as opposed to air? What is to prevent the police from using dowsing sticks to determine who should be raided?
I don't think these details matter as much as the fact that these police departments are wasting their time and resources conducting raids against people who they suspect of owning marijuana. Surely they could put their time and money to better use, for example training police officers not to react violently/kill unarmed (mostly black) kids.
What's crazy is the guy only had an IQ of roughly 125, and the rest of the article further indicates this organization wasn't weeding out the exceptional (as one might assume), but was actually putting a ban on ALL smart people. That is just insanity.
It's easy to bar an individual whose IQ is too low, but it's a trivial matter to fake having a lower IQ than you really do.
Obviously no recompense for the plaintiff in this case, but now that the cat's out of the bag ... if you really want a job that only wants to recruit idiots, you know how to get it.
But Kerr misses the spirit of Balko's original article. Kerr is saying that the officers did not violate the rules of the game. Balko is saying the rules are absurd and the game needs to change. Both authors are correct.
Additionally, the original title reads: "Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home". This is mostly correct. If the officers had not misidentified plant material, and if they had not been monitoring innocent shoppers, this incident would not have occurred. Only in the upside-down world of the drug war is it normal to send government agents armed to the hilt to invade a private residence and hold the occupants at gunpoint, all based on flawed and flimsy evidence.