Tag Archives: SWAT

Puppycide in Fulton, MO

A few days ago, SWAT officers of the Fulton (Missouri) Police Department shot and killed a dog while serving a “narcotics” search warrant. The residents of the house asked if they could cage the dog. The officers denied the request, ordering that the dog to be chained to a tree. The dog got loose and was then shot eight times, the first six shots wounding the dog and the last two point-blank, shotgun blasts killing it. After finishing off the first dog, the officers first maced and then turned their guns on caged puppies only stopping when confronted by concerned neighbors. 

After kicking in doors, killing a family pet, pepper-spraying and attempting to kill two caged puppies, and generally terrorizing a neighborhood, the only charge filed against the Fulton man was misdemeanor marijuana possession. He was released the same day. Par for the course in the War on Drugs. We’ve certainly seen plenty of similar dog executions here in Columbia. We’ve interviewed grieving dog owners and shown proof that the dogs were shot while running away from officers. And don’t forget the infamous SWAT raid that made Columbia, MO the dog shooting capital of the world. A guess Fulton wants in on the action.

http://www.komu.com/news/update-fulton-dog-died-man-arrested-in-a-drug-search/

*Puppycide is a term coined by Radley Balko

 

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AFR Guest Blog: Jonathan Whitworth’s Dismissed Civil Suit

Keep Columbia Free is happy to have a guest blogger in the house. Scott Alexander Meiner, a policy analyst at Americans For Forfeiture Reform, has penned a blog breaking down U.S. District Judge Nanette Laughrey’s recent ruling in the case stemming from Columbia’s infamous SWAT raid at the home of Jonathan and Brittany Whitworth. In his blog, Scott breaks down the problems with the ruling and the scourge that is “qualified immunity.” Enjoy…

BY SCOTT ALEXANDER MEINER, ON NOVEMBER 29TH, 2011

Last week, U.S. District Judge Nanette Laughrey granted summary judgement to dismiss the civil rights suit (raised under 42 U.S.C. § 1983of Jonathan Whitworth, Brittany Whitworth, and their son. The civil rights claim stems from a February 2010 Columbia, Missouri SWAT raid that went viral when police footage was obtained by the Columbia Tribune.

At issue in the motion for summary judgement was whether the police officers’ discretionary behavior was reasonable, in the context of the situation, and whether it violated clearly established statutory or constitutional rights of which a reasonable person would be aware (Harlow v. Fitzgerald, 457 U.S. 800 (1982)Graham v. Connor, 490 U.S. 386 (1989)).

Such motions, under Rule 56 of the Federal Rules of Civil Procedure, are to be looked at in the most favorable light to the non-movant (CPD).

In reality, law enforcement is afforded such favorable light, via judicial imaginings of what might have been reasonable, that “qualified immunity provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”  Malley v. Briggs, 475 U.S. 335 (1986)

It is no surprise that Judge Laughrey was able to rationalize a context in which it might have been reasonable for an officer to kick Jonathan Whitworth in the head while he lay face down, unarmed, before a fully armed SWAT tactical unit.

“Thus, even if Hendrick indeed kicked Whitworth, a single kick to force swift compliance with an order, and to deter hesitation incompliance with future orders from a dangerous suspect, would be objectively reasonable in this context. It is also uncontested that Whitworth suffered no injury from this contact except pain.”  Whitworth v.  Bolinger

In the execution of the warrant, a paramilitary SWAT team entered the Whitworth’s family home. Police fired seven shots while in the Whitworth home. Both of the Whitworth family dogs were shot. One of the dogs was killed. The couple’s seven year old child was witness to the raid. Jonathan Whitworth was kicked in the head. Brittany Whitworth and her child were directed at gun point.  As a result of the the raid, the police were able to find some drug paraphernalia and a small amount of cannabis. The police, initially, charged the Whitworths with child endangerment.

“The Court agrees that ideally officers would execute search warrants without pointing a gun at women and children not suspected of committing a crime. On the other hand, where officers are aware that a dangerous suspect and two large dogs are on the property, a reasonable officer could, in the heat of the moment, rely on such tactics to prod individuals to move swiftly through a potentially dangerous situation. This is especially true, where shouting and gun-pointing occurred as Mrs. Whitworth and P.M. stepped over Mr.Whitworth–who was lying on the floor–and the danger of resistance by any of the Whitworths was arguably at its highest. In this context, the behavior alleged by the Whitworths did not violate a clearly established constitutional right. The SWAT officers are thus entitled to qualified immunity on this claim.” Whitworth v.  Bolinger

This is entirely consistent with scores of cases wherein citizens were plainly wronged and yet can find no corrective, civil recourse.

In 2010, Radley Balko described the false arrest and failed civil suit of Brian Kelly. The ordeal is as instructive as it is scary.

“When Rogers returned from writing a ticket, he noticed Kelly’s camera. Rogers demanded Kelly turn the camera off and hand it over to him. Kelly complied.

Rogers then returned to his car and called John Birbeck, an assistant district attorney in Cumberland County. Rogers asked Birbeck if Kelly’s recording violated Pennsylvania’s wiretapping law. Birbeck incorrectly told him it did. Rogers then called in back-up officers and placed Kelly under arrest. During the arrest, Rogers “bumped” (the term Kelly used in his lawsuit) Kelly, causing a staple from a rugby injury to rupture, causing Kelly’s leg to bleed. Kelly spent the night (27 hours) in jail. He was eventually charged with a felony punishable by up to seven years in prison. Cumberland County District Attorney David Freed would later tell the Patriot-News that while he sympathized with Kelly not being aware that what he did was illegal, and that he might (graciously!) allow Kelly to plead to a misdemeanor, “Obviously, ignorance of the law is no defense.”

Here’s the problem: Freed was the one who was ignorant of the law. So was Birbeck. And so was Rogers. The Pennsylvania Supreme Court ruled in 1989 that recording on-duty public officials is not a violation of the state’s wiretapping law because public officials have no legitimate expectation of privacy while they’re on the job. The order for Kelly to stop videotaping was illegal. So was Kelly’s arrest and his incarceration. Freed eventually dropped all charges.

Kelly filed a civil rights lawsuit against Rogers and the town of Carlisle. In May of last year, Federal District Court Judge Yvette Kane dismissed Kelly’s suit. The reason? As a police officer, Rogers is protected by the doctrine of qualified immunity. In order to even get his case in front of a jury, Kelly has to show that Rogers (a) violated Kelly’s civil rights, and (b) the rights Rogers violated have been clearly established. Even if Kelly can meet those two burdens, he must also show that Roger’s actions in violating Kelly’s rights were unreasonable.

So it isn’t enough that the police are wrong about the law. They have to be very obviously wrong for you to collect any damages from a wrongful arrest.”

Kelly’s civil suit (Kelly v. Borough Of Carlisleclaimed that the arrest had violated his rights guaranteed by the First and Fourth Amendments. Upon dismissal by summary judgement, Kelly appealed to the Third Circuit Court of Appeals. Kelly’s First Amendment claim was rejected. All claims against the Borough of Carlisle were rejected. The summary judgement on Kelly’s Fourth Amendment claim was vacated and remanded for further proceedings consistent with the Third Circuit’s analysis. The remand instructed,

“that police officer who relies in good faith on a prosecutor’s legal opinion that the arrest is warranted under the law is presumptively entitled to qualified immunity from Fourth Amendment claims premised on a lack of probable cause. That reliance must itself be objectively reasonable, however, because “a wave of the prosecutor’s wand cannot magically transform an unreasonable probable cause determination into a reasonable one.”  Accordingly, a plaintiff may rebut this presumption by showing that, under all the factual and legal circumstances surrounding the arrest, a reasonable officer would not have relied on the prosecutor’s advice.”

In analyzing the holding, Harvard Law Review noted,

“The Third Circuit had previously allocated the burdens of production reasonably: once the plaintiff established a prima facie case of wrongful arrest, the court required the police officer defendant to show probable cause, and it required the defendant to prove his or her qualified immunity defense. This arrangement accommodated the plaintiff’s limited right to pretrial discovery and the officer’s information advantage regarding the plaintiff’s arrest. The court’s opinion in Kelly will upset this sensible allocation in cases in which the police officer has consulted with a prosecutor: the plaintiff will now have the burden of showing that the officer was objectively unreasonable in following the advice. Kelly is representative of the plaintiffs on whom this burden will fall. He was neither committing nor about to commit a crime. A police officer nonetheless arrested him, and he went to jail. Because the arrest was made without probable cause, it violated Kelly’s Fourth Amendment right. Moreover, the law was clearly established in the relevant jurisdiction that the officer’s basis for arresting Kelly did not constitute probable cause. Thus, a reasonable officer would have known that he was violating Kelly’s rights. Yet, solely because a prosecutor confirmed the police officer’s inaccurate interpretation of the law, Kelly (and similarly situated civil rights plaintiffs) will now be required to produce evidence to rebut the judicially mandated inference that the police officer’s violation of his clearly established constitutional right was objectively reasonable. This presumption is unlikely to increase legal consultation; instead, it will allow courts to relieve law enforcement officers of their responsibility to exercise independent professional judgment and will decrease the likelihood that constitutional violations will be redressed.”

Qualified immunity has become so expansive that it frequently fails to correct these constitutional violations.

Simultaneously, law enforcement is increasingly funded by separate revenue streams that are not directly answerable to local voter intent.  Big money is coming in from asset forfeitures and federal law enforcement grants. Each dollar acquired outside of the legislative appropriation model is one less piece of control that the citizenry wield. The funds are not enough to ignore the citizenry, but we do see prioritization that is substantially at odds with voter intent.

The Whitworth warrant was predicated on unnamed sources that claimed Jonathan Whitworth was a major cannabis dealer. That was more than five years after Columbia, Missouri passed a proposition to make the enforcement of cannabis the lowest priority by law enforcement. The measure passed by a 61% to 39% vote.

An estimated 130-150 SWAT raids occur everyday in the United States. That is some 40,000-50,000 paramilitary operations every year.

We are simultaneously escalating domestic paramilitary activity, increasing immunity from prosecution, and ceding budgetary control.

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Campaign Promises are Sacred

During the campaign to authorize the use of government surveillance cameras in Downtown Columbia, the voters were sold a bill of goods by Keep Columbia Safe and the camera proponents within the city bureaucracy. Interestingly, but not surprisingly, now that the cameras are in place, the final product looks quite different than what was proposed. 

It is important to note that while the Prop 1 initiative and the ordinance it produced merely authorized the installation and use of cameras, it has been interpreted as a mandate for action. If we are to accept the ordinance as a command to action, it is important that the camera parameters that were spelled out during the campaign and in the ordinance be strictly adhered to.

Unfortunately, the city has ignored the will of the voters and, in a series of bureaucratic head-fakes reminiscent of the events surrounding the building of our behemoth, eyesore parking garage, the will of the voters and the ordinance itself have been repeatedly and summarily ignored. 

Cost:

During the campaign, the proposed camera system was repeatedly estimated at a cost around $50,000 for the first year. Based on that number, The District offered to fit half of the bill for the first year and so budgeted $25,000 of their special tax funds for the project. When it was all said and done and the council voted to install the cameras, the price tag was actually $75,000 per year, a 50% increase.

This may seem trivial when considering a tax funded, government program. After all, it’s rare for a government program to come in at or under budget, but this budget was important to the debate that formed voter opinion. When camera opponents argued that an additional officer would be a better use of public funds, camera proponents made the claim that the salary and training costs, estimated at $125,000, involved in hiring an officer were far more than the relatively inexpensive, estimated $50,000 price tag for the cameras. Had the proponents been honest with the cost and the gap between camera cost and officer cost been narrowed, many fiscally concerned voters may have voted against the cameras. 

Conspicuous?

The camera ordinance states that, “Downtown safety cameras may only be deployed so as to be conspicuous…” 

This has been a point of contention since the moment of installation. Before they were installed, Lt. Chris Kelly of the Downtown Unit told the Tribune that the plan was “to keep them unmarked, or ‘plain Jane,’ so the cameras blend in with the environment.” 

Lt. Kelly later claimed that he was quoted out of context, but I can’t imagine a context that would change the meaning of those words. In reaction to his foot-in-mouth moment, Lt. Kelly announced that his camouflaged cameras would be adorned with a CPD logo to make them “conspicuous.” 

Even with the 5 inch CPD stickers, the cameras are still not easy to spot if one is not consciously looking for them. During a visit to Tom Bradley‘s morning radio show on September 21st, 2011, CPD Public Information Officer Jill Weineke stated that the cameras are small and that she often has to point them out to people. I guess Jill hasn’t read the ordinance. 

The Live Feed:

Again, during the campaign, camera proponents promised one thing but the city did another. The folks at Keep Columbia Safe repeatedly poopooed fears articulated by civil libertarians, myself included, that the cameras would be used for live, Orwellian surveillance. Proponents claimed that the police did not have the time or resources to play Big Brother and monitor law abiding citizens on the city streets. They claimed plainly that the cameras would only be used as recording devices and that those recordings would only be accessed in search of evidence if a crime was committed and voters made up their minds based on these claims. Only a few short months after installation, it came to light that the live feed from the cameras was being monitored by the CPD. 

 

It all boils down to the fact that camera proponents lied to the voters. As Dan Viets so eloquently pointed out, “A campaign promise is sacred.” 

Thanks to Citizens For Justice for this footage.

Intimidation:

As Mitch Richards pointed out in his address to the Columbia City Council, there is a stationary camera pointed Directly at The Blue Fugue, a bar that is a popular meeting place for liberty advocates. The Blue Fugue is among the safest establishments in town, and sees none of the violent crime that might merit government surveillance, especially when compared with other bars in the area.

So why point a camera directly at The Blue Fugue? I won’t venture a guess at the official explanation, but it is important to note that the CPD has a history of intimidating those who dare to criticize the department. For proof, one need look no further than the case of Greg Williams and Officer Robert Fox. Mr. Williams participated in a protest against the use of SWAT dynamic entries for the service of search warrants for non-violent crimes like Columbia’s infamous Kinloch Ct. SWAT raid. Officer Fox, and probably other officers, ran police background checks on the protesters. This came to light after Officer Fox released Mr. Williams’s juvenile record in the Tribune’s online comment section. Most of the stories regarding the indecent focused on the criminal release of sealed juvenile records in an attempt to discredit a protester who was merely exercising the most basic of American liberties. What the media accounts failed to recognize was that the CPD was running background checks on law-abiding citizens who dare to speak up and speak out when they see their public servant police force violating civil rights. 

With this in mind, it is not much of a stretch to imagine how this camera system might be used to intimidate the public and ultimately violate the First Amendment. Let’s not forget that the American Revolution and our beloved Bill of Rights was fomented over a few pints of ale in a few New England pubs.  

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Jonathan “Ryan” March Interview

Last week, Mitch and I sat down with Jonathan “Ryan” March whose home was raided by the Columbia, MO S.W.A.T. team in 2008. The S.W.A.T. team was at his home to look for marijuana. Ryan had no prior felonies and no history of violence. During the raid, Ryan’s two retreating dogs were shot and killed. In this video, Ryan March discusses what it is like to be a victim of the drug war.  

Interestingly, on the City of Columbia website we found a promotional video for the CPD S.W.A.T team in which CPD Officer John Warner, who was the officer wearing the helmet camera during the raid on Mr. March’s home, tells how he enjoys the adrenaline rush he gets from such raids. One would hope that S.W.A.T. officers would see these violent raids as a necessary evil instead of a source of entertainment. One wonders what the S.W.A.T. officers are doing for kicks now that Chief Burton has put the brakes on the service of narcotics search warrants via S.W.A.T. dynamic entry. Perhaps the department should invest in an Xbox. Here is the clip of Warner describing why he likes being on the S.W.A.T. team.

 

And just for fun, here is an excerpt from The Imaginarium of Doctor Parnassus. Enjoy.

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CPD SWAT Killed Two Retreating Dogs in 2008 — Video

 

This is a video of the Columbia, MO SWAT team serving a search warrant for marijuana on 03.07.2008 at the home of Mr. Jonathan March.
 
According to Attorney Dan Viets, “Mr. March had no prior felony convictions” at the time of the raid and he did “possess firearms which were absolutely legal and constitutionally protected.”
 
During the raid, 5 concussion grenades were exploded in and around the home. One of the grenades exploded near the feet of the young lady visitor, seen in the video, who, at the time, was seated on the couch. Two additional grenades were exploded subsequent to the arrest on the premise that the CPD needed to prove that the previous 5 grenades had done no damage. The grenades left clear charred remains on the carpet and other areas of the home.
 
During sworn testimony taken by Viets, the SWAT officers who executed this raid acknowledged that they had shot to death two dogs with their machine guns. Both dogs were shot in the back while retreating. One of the dogs is shot at around the 6:30 mark in the video as an officer tops the stairs, passes a suspect on the floor, and steps into a bedroom. You can see a glimpse of the dead dog as the officer stands in the doorway. The dog is obviously facing away from the officer. At 6:55 you can see another injured dog struggling in the hall.
 
It is important to note that this raid took place before Chief Ken Burton accepted his position with the CPD. Due to the overwhelming public outcry stemming from a more recent yet similar raid under his command, Chief Burton has, for the time being,  reigned in the use of his SWAT team to serve search warrants for non-violent crimes and criminals.
 
While the prevalence of violent, paramilitary raids has waned in Columbia, this type of raid is happening somewhere in the United States right now. Please speak out against this government sanctioned domestic terrorism.
 
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New Columbia Police SWAT Video

Our friends at The Show-Me Institute obtained this video of a Columbia Police Department S.W.A.T. raid that took place in 2008. This raid took place before the era of Police Chief Ken Burton and the S.W.A.T. reforms he instituted following the famous botched raid on Kinloch Ct.

The first four minutes is footage of the police driving to the location of the raid, so hang on. 

 

A couple of things stand out.

Chief Burton admitted that mistakes were made during the lead up to the famous Feb. 2009 Kinloch Ct raid. Those mistakes included a lack of surveillance that would have alerted the officers to the presence of a young child in the home. 

In this new video, several young children are present. Was a lack of surveillance to ensure the safety of children standard operating procedure and not a “mistake” for the CPD prior to Chief Burton’s policy changes?

There is a very telling statement made at the 7:30 mark in the video. The officer is in the bathroom with an extremely docile and confused elderly woman when he says, “We’re just going to put you in handcuffs for right now just so we can control you.”  He then handcuffs the old woman.

I’m not suggesting that this officer violated any policy, but handcuffing an innocent old woman simply to “control” her sends chills up my spine.

Thankfully, Chief Burton has taken some baby steps toward S.W.A.T. reform, but paramilitary police raids on family homes take place all over the country, every day. In that context, his baby-steps seem giant.

I recommend you read Radley Balko’s white paper, “Overkill.”  Balko is the nation’s foremost expert on paramilitary S.W.A.T. raids.

Thanks to the folks over at Americans for Forfeiture Reform for their help with this video.

Mark Flakne

***UPDATE***

Erica Warren over at COMOCITIZENS has located the warrant and the accompanying Tribune story regarding this raid. This was a narcotics search warrant served at 1002 Madison, Columbia.

Here is a picture of the address from Google.

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