Weird fetishism for the Constitution

In a post about the police raid in which a 7 year old girl was accidentally shot by an officer, I missed a horrifying detail which makes the incident more egregious. The SWAT team fired a flashbang grenade into the room in which the girl was sleeping. As if that wasn't bad enough, the building was a duplex, and they fired it into the wrong unit:

According to the Detroit Free Press, the police say they had information that their suspect, 34-year-old Chauncey Owens, was armed. He was a suspect in a homicide. If Owens were on a killing spree, knowingly fleeing police, or holed up in the house with hostages, it may have justified using a SWAT team to apprehend him. But it doesn't appear that Owens presented that sort of imminent threat. Police had spotted him earlier in the day outside of the house. It's difficult to understand why the police didn't confront him then or the next time he left. Instead, they waited until the middle of the night to conduct a volatile raid on a duplex, putting everyone inside the property in jeopardy. Geoffrey Feiger, the attorney for the Stanley-Jones family, alleges the police weren't even aware the building was a duplex, and only obtained a warrant for the upper apartment after the raid.

The Stanley-Jones family says the police should have known there were four children in the building. They say there were toys strewn about the yard, and that a cousin warned the police shortly before the raid after seeing police approach the house. I'm not sure it matters if the police knew or not. If they didn't, they should have. And if they did, they shouldn't have used the aggressive tactics. SWAT teams are at their best when they're defusing already violent situations, not when they're creating new ones.

I agree with Radley Balko, who goes on to discuss the use of flashbang grenades:
Though touted as "non-lethal," flashbang grenades have caused a number of deaths and serious injuries. The devices set off a wave of intense light and sound designed to stun everyone inside of a building long enough for police to enter and secure the premises. They're indiscriminate. Their intended effect is to cause injury to everyone near them. That means they're effectively a form of punishment on people who have yet to be convicted of any crime. And that includes innocent bystanders as well as suspects. And they are explosives, which means there is a very real risk of injury and destruction. Flashbangs have caused second- and third-degree burns, and ignited fires that have consumed houses.

The night of Aiyana Stanley-Jones' death, police shot a flashbang grenade through the window of her home. Her family says it landed on the couch where she was sleeping, ignited the blanket laying over her, and set off flames that began to burn the girl just before she was shot. (The autopsy hasn't yet been released.)

The fact that a grenade was fired into the wrong apartment is horrifying enough in itself (because it shows how callused police have become), and if it in fact set fire to the girl, I hope her family ends up owning what's left of the squalidly dysfunctional Detroit Police Department.

But what worries me even more is the routine deployment of flashbang grenades against people who have not yet been charged but who are merely accused (of non-violent, victimless crimes), as well as innocent third-parties who are accused of nothing at all.

Flashbangs detonate with a blinding flash of light and a deafening explosion. Their function is to temporarily stun people in a targeted building until police or military personnel can get inside. Though the weapons are marketed as non-lethal, there have been a number of incidents in which they've set homes on fire (some resulting in fatalities), caused severe burns, or confused police officers into thinking they were coming under gunfire, causing them to open fire themselves.

But even when used and executed as intended, flashbangs cause injury by design, and when used by law enforcement, that injury is inflicted on people who have yet to even be charged with a crime, much less convicted of one. In most cases, the crimes that precipitated the raid are consensual and nonviolent: They're drug offenses.

Clay Conrad, a criminal defense attorney in Houston, criminal justice specialist, and author of the book Jury Nullification: The Evolution of a Doctrine, has tried to challenge the use of flashbangs in the service of drug warrants. "It's just an assualt," Conrad says. "These things are designed to blind and deafen. They produce a shockwave of 136 DB or more. You're intentionally injuring people."

Under what legal theory are police allowed to simply injure people with these devices? Simply because they have a search warrant? The Fourth Amendment allows police to conduct "reasonable searches" upon probable cause:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Perhaps I'm taking my constitutional literalism too far, but I don't see any reference to or authorization of flashbang grenades there. I'm wondering how it is humanly possible to imagine that a constitutionally authorized "reasonable search" could countenance firing an explosive device into an occupied home with sleeping kids.

Any idea what the founders might say? Balko opines that federal constitutional challenges to these devices may soon be forthcoming, and I certainly hope so, because I think it's a slam dunk that they're not contemplated by the Fourth Amendment.

That is, if the Fourth Amendment still means anything, which a growing chorus says it does not. If you think that by "growing chorus" I refer only to conservatives, think again. It is very typical these days for leftists to express pure, undisguised disdain for the Constitution and for those who believe in it. A perfect example was recently provided by one of Salon's great constitutional scholars, who condemned what he called "weird fetishism for the Constitution on the right."

I can live with that. If it's a "weird fetish" to think that a Fourth Amendment reasonable search does not contemplate firing flashbang grenades into residences with sleeping children, then OK. I'm a weird fetishist. I've been accused of worse things.

UPDATE: If this post by Randy Barnett is any indication, I may be more a constitutional textualist than a constitutional literalist. That may well be, but I still don't see how firing grenades into a window of an occupied residence falls within the definition of "search." (Reasonable or otherwise.)

Via Glenn Reynolds.

I studied Con Law in law school, where they did their damnedest to disabuse me of the idea that the words the founders wrote might actually mean what they say.

Instead, the focus was on applying precedents that dictated when doctrines like the "strict scrutiny" and "rational basis" tests should be applied. I always liked the elegant simplicity and the plain wording of the Constitution, but quite frankly, "Constitutional Law" as it was taught put me to sleep.

No really. It was as if some series of committees had spent countless years reworking the Constitution to fit the needs of bureaucrats.

posted by Eric on 05.26.10 at 12:56 PM


Under what legal theory are police allowed to simply injure people with these devices?

The theory of What Are You Gonna Do About It?

The sum of de facto precedent is that they can outright kill you whenever they want, for whatever reason they feel like making up afterward. And you can die. And that's it.

Well, they might get fired, one in a thousand times. And there's maybe a .001% chance they could be ineffectually prosecuted by a DA who doesn't give a shit if he wins the case, and won't.

The public's "legal theory" is Well You Must Have Done Something, because they're not going to admit the vicarious thrill that murderous (and murderously negligent) cops give them.

Ius primae noctis. Kinda.

guy on internet   ·  May 26, 2010 1:17 PM

I'm just worried about my dogs, they are love machines but they bark like hellhounds, and one is a pit/mastiff mix, albino too! Say hi to Coco,

Bobnormal   ·  May 26, 2010 1:19 PM

Any ideas about government coming out of academia are tyranny until proven otherwise.

Brett   ·  May 27, 2010 8:03 AM

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