Police, The Fourth Amendment, Qualified Immunity

Confidential “reliable” informants and SWAT raids

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My preliminary comments:

I have been waiting for a while for a case like the one below to blog. One area of the law that troubles a lot of people, myself included, is how ready police are to use a SWAT raid these days. You can read more about that in this series of recent blog posts by blogger [i]Ex-Cop Law Student.[/i] Or, if you prefer a longer treatment, then there is Radley Balko’s straitforward book length indictment of the way SWAT raids have become the go to tactic for police. To put my spin on it, troubled as I am by SWAT raids, and by police initiated violence more generally, I have always been more troubled by police dishonesty, including situations where police may, or may not, be dishonest, but where it is impossible to find out the truth later. Speaking for myself, I would rather be beaten up by police than be lied about by them. I would rather sustain physical injuries than injuries to my character and good name. I will say that I have not yet been the victim of police lies, but I see the potential and I see it as a serious possibility (not just for me, but, rather, for anyone in modern society). To put it plainly, we have made America’s police into soldiers at war, and the first casualty of war is truth.

Which brings me to confidential “reliable” informants (now, more often in legal circles simply referred to as confidential informants, or CI). the law has evolved to a point where police can get a warrant simply by saying that a CI: (i) is reliable; and (ii) sold the CI drugs. The idea is that police won’t say in a warrant request that a CI is reliable when the CI has not been reliable. There are two fundamental and huge problems with this “protection” against CIs who are not reliable.

One big problem is that police define “reliable” different than we do. CIs are usually drug addicts or drug dealers, and often commit other crimes — this is how they get enlisted to become informants in the first place. Would you let such a person babysit your kids? “Reliable” is a relative term, and, in the context of CIs it has been defined down all the way to the realm of meaninglessness. The old saying says that a broken clock is right twice a day — by the standards commonly applied to CIs that is considered rock solid reliability.

The other big problem with “reliability” of CIs is that nobody gets to do an independent investigation, or determination. of whether the CI is reliable. Is the CI a drug addict or a convicted child molester? The policeman doesn’t have to ask the CI that when he is seeking a warrant, and nobody gets a chance to look into that later, after the warrant has been served. Nobody gets to examine that if the warrant turns up evidence of crime that leads to a criminal trial and conviction. More trouble-ingly, nobody gets to look into that if the warrant turns up no evidence. The plaintiff in a civil suit doesn’t get to depose the CI, or do any other investigation of what kind of person the CI is. The plaintiff doesn’t get to know if the CI is an spiteful ex-lover, a career criminal or a disgruntled ex-employee. I hope this changes during my lifetime. It is a simply shameful state of the law. I’ll be more specific: I can live with the fact that criminal defendants o not get to know who the CI was, but civil plaintiffs, innocent plaintiffs, should have the right to get to know their CI and the right to paint a picture of their CI as someone that the police should have well known better than to rely on. I realize that this paragraph is what my younger brother would call a “rant.” So be it. This is a rant-worthy legal problem in the current system.

So, now we come to the new case, a Second Circuit decision — three judges — three different opinions. It is a case where CI abuse meets SWAT abuse. Plaintiff, of course, does not get to know her CI, but at least her civil suit for the SWAT raid she suffered survives, hobbled by CI law though it may be.

Case: McColley v. County of Rensselaer, Court of Appeals, 2nd Circuit 2014

What happened: CI said that there were drugs in plaintiff’s apartment, so police did a violent, surprise SWAT raid on her apartment a couple weeks later. No drugs found.

Decision: Judge Pooler took the position that the police might be liable for neglecting to mention certain facts, which they knew, in their warrant application, such as the fact that plaintiff lived there and had no criminal record. Judge Calabrisi took a middle road by taking the position that police had probable cause for a warrant, but not reasonable suspicion for a SWAT raid (as opposed to a more traditional, less violent search warrant service). Judge Raggi, writing for the dissent, thought that the police were good to go.

Written by Burgers Allday

January 27, 2014 at 6:48 am

Posted in Uncategorized

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