State Courts

The Michigan Supreme Court Tuesday ruled that it is not illegal to drive while having marijuana metabolites in the body, reversing a 2006 decision by a more conservative version of the court. Marijuana metabolites are not a controlled substance under state law, and their mere presence thus cannot be the basis of a conviction under the state's drugged driving law, the court held.

The court ruled that a Washtenaw County jury should have been allowed to hear evidence the victim was drunk, remanding the case back to circuit court. But in ruling that marijuana metabolites are not a controlled substance, the court invalidated what was in effect a per se zero tolerance drugged driving law that allowed for people to be convicted of driving while impaired when they were not actually shown to be impaired.

"We hold that 11-carboxy-THC is not a schedule 1 controlled substance under MCL 333.7212 [controlled substances act] and, therefore, a person cannot be prosecuted under MCL 257.625(8) [drugged driving act] for operating a motor vehicle with any amount of 11-carboxy-THC in his or her system," read the opinion.

The opinion, largely a demolition of the previous Supreme Court's 2006 ruling in People v. Derror that marijuana metabolites are a controlled substance, thus allowing for drugged driving convictions based solely on their presence, noted that Michigan is now a medical marijuana state and that allowing Derror to stand would unfairly impact medical marijuana patients.

Under Derror, Justice Corrigan wrote for the majority, "Individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired. Indeed, in this case, experts testified that, on average, the metabolite could remain in a person's blood for 18 hours and in a person's urine for up to 4 weeks."

It's not just about medical marijuana patients, the opinion suggested: "Thus, under Derror, an individual who only has 11-carboxy-THC in his or her system is prohibited from driving and, at the whim of police and prosecutors, can be criminally responsible for choosing to do so even if the person has a minuscule amount of the substance in his or her system. Therefore, the Derror majority's interpretation of the statute defies practicable workability given its tremendous potential for arbitrary and discriminatory enforcement."

It is neither fair nor just nor in the interest of public safety to charge people with drugged driving who aren't impaired. Finally, there is a Michigan Supreme Court that recognizes this.

As is periodically the case, law enforcement SWAT teams have once again come under the harsh gaze of a public outraged and puzzled by their excesses. First, it was the February SWAT raid on a Columbia, Missouri, home where police shot two dogs, killing one, as the suspect, his wife, and young son cowered. Police said they were looking for a dealer-sized stash of marijuana, but found only a pipe with residues. When police video of that raid hit the Internet and went viral this month, the public anger was palpable, especially in Columbia.

SWAT team, Contra Costa County, California

And then came the tragedy in Detroit two weeks ago, where a member of a Detroit Police SWAT team killed seven-year-old Aiyana Jones as she slept on a living room couch. Allegedly, the officer had a tussle with the girl's grandmother as he charged through the door after a flash-bang grenade was thrown through the window, and the gun discharged accidentally, though the account has been disputed by the family's attorney. In this instance, police were not looking for drugs but for a murder suspect. He was later found in another apartment in the same house. Again, the public dismay and anger was palpable.

Botched (wrong address or wrong person) raids or raids where it appears excessive force has been used are certainly not a new phenomenon, as journalist Radley Balko documented in his 2006 study, "Overkill: The Rise of Paramilitary Policing in America." But most raids gone bad do not get such wide public or media attention.

The victims often are poor, or non-white, or both. Or -- worse yet -- they are criminal suspects, who generally generate little sympathy, even when they are abused.

And while they were originally created to handle very special problems -- terrorist incidents, hostage situations, and the like -- there just aren't that many of those. As a result the use of SWAT has seen "mission creep," where SWAT teams are now routinely called out to serve search warrants, particularly in drug cases. In 1980, 2,884 SWAT deployments were recorded nationwide; the number today is estimated by experts at 50,000 annually or more.

The sheer normality of SWAT teams doing drug raids now, as well the status of their victims, has resulted in effective immunity and impunity for SWAT teams that commit errors or engage in unnecessary force. Most of the time when a raid goes bad, nothing happens.

It seems to take an especially outrageous incident, like Columbia or Detroit, to inspire public concern, and even then, it is the citizenry and perhaps part of elected officialdom against the powerful law enforcement establishment. Creating effective oversight over SWAT teams and their paramilitary raids is not easy -- but it can be done, or at least started.

The now infamous 2008 raid on the home of Berwyn Heights, Maryland, Mayor Cheye Calvo by a Prince Georges County Police SWAT team is a case in point. In that raid, police were tracking a package they knew contained marijuana, and once it was delivered to Calvo's house and taken inside, the SWAT team rushed in, manhandled Calvo and his mother-in-law and shot and killed Calvo's two dogs.

But further investigation showed the Calvos were doubly victimized, not criminals. They were victims of drug dealers who would send packages to unknowing addresses, then pick them up after they were left by the delivery man. And they were the victims of a SWAT team run amok.

SWAT team, Pasadena, Texas

Prodded by Calvo and others, the Maryland legislature last year passed a bill making it the first state to make any attempt to rein in SWAT. That bill requires each agency with a SWAT team to file annual reports detailing their activities and the results of their raids. The effort was opposed by law enforcement, of course, but legislators were swayed by hours of gut-wrenching testimony from raid victims.

"It was the telling of the stories of a number of people who had suffered either botched or ill-advised raids," Calvo explained to Drug War Chronicle. "It happens so often, and the stories don't get told in a meaningful way, but my incident made such wide headlines that people called me reaching out, and once those circles developed, we were able to get some political momentum," he recalled.

"I happened to be in a unique position," he said. "Through my experience at NCSL, I knew a lot of legislators and worked with the Judiciary Committee in Maryland to get a bill drafted. When we had hearings, it wasn't just one or two stories, probably more like a dozen, including people we didn't know about, but who just showed up to tell their stories. There was a wrong house raid with a dog killed, there was a warrant served at a bad address, a mother whose house was raided after her son was caught with a gram of marijuana, there was a triple no-knock raid at three homes with the same name on all three, there was a former member of the judiciary committee whose mother's home was raided because police were looking for a relative. They kicked in her door and knocked her to the ground," Calvo recalled.

"Each story helped connect the dots," he explained. "Those stories made a powerful case. We were not saying the Assembly should micromanage the police, but we wanted to shine a light on what was happening. The first step was making people aware, and getting the SWAT data makes tangible and comprehensive what is otherwise anecdotal."

Although the first formal report on Maryland SWAT raids is not due until this fall, preliminary numbers from the first six months of reporting have already generated more stories in the press and kept the issue alive. And they provide grist for the reform mill.

"It's not just the number of raids, it's that 92% of them are for search warrants, not hostage situations or bank robberies or the like," said Calvo. "It's that two times out of three, they kick in the door. It's that in some jurisdictions -- Prince Georges, Anne Arundel, Annapolis -- the majority of deployments are for misdemeanors or nonviolent felonies. Prince Georges had 105 raids against nonviolent offenders in six months, and that speaks to deeper policy problems. Baltimore County deployed only once for a nonviolent offense. That's more a model of professionalism."

Calvo said he plans to use the full year's worth of SWAT raid reporting due this fall to return to Annapolis to push for further reforms. "The legislature could impose training standards or other statewide protocols," he said. "It could impose more transparency. A full year of data will be helpful with that. Hopefully, the reporting requirement passed last year will end up being just the first step in a multi-step process to insert some better judgment into the process for when these paramilitary units are deployed."

PolitickerMD cartoon about the Calvo raid

The activism is continuing, however. "There is a lot going on in response to that raid," said Columbia attorney Dan Viets, a member of the board of national NORML. "The ACLU and NORML are involved, but so are groups of citizens who have not been activists before. And our police chief has been pretty responsive -- he doesn't have that bunker mentality that so many cops do," Viets said.

"For us, it's not so much SWAT as the use of search warrants for nonviolent crimes. Whether they have SWAT on the back of their jackets or not, they still do the same brutal stuff," the defense attorney continued. "The execution of a search warrant is almost always a violent act, it's a home invasion. It isn't that they're SWAT that matters, it's the fact that they engage in violence in the execution of those search warrants," he said.

"We are trying to suggest that police not use search warrants for nonviolent crime," said Viets. "They can rely on the tried and true: Send in an informer to do a controlled buy, then get an arrest warrant. Even the chief has said that they would try to arrest people outside their homes."

Similar outrage and activism is occurring in Detroit, where anti-police sentiments were loudly voiced in the days after the killing of Aiyana Jones. Police brutality activists usually isolated in their complaining are being joined by everyday citizens. The Detroit City Council is investigating. The Rev. Al Sharpton spoke at Jones' funeral. But whether the uproar results in a reformed SWAT policy remains to be seen.

"The death of that girl in Detroit was an inevitable result of the broad use of these things," said Calvo. "When you're doing 50,000 or 75,000 SWAT raids a year, it will eventually happen."

"Whatever one thinks about using SWAT tactics when looking for a murder suspect, the results in Detroit show how dangerously volatile these tactics really are," said Dave Borden, executive director of StoptheDrugWar.org, who is also the moving force behind the Americans for SWAT Reform web site and campaign. "There is every reason to believe that conducting a late night raid and detonating flash bang grenades led to the physical contact between the woman and the officer in which the gun discharged, killing the girl. That's all the more reason to avoid those tactics wherever possible, certainly in routine drug search warrants."

"In Detroit, they were going after a murder suspect, but there are a whole lot of questions about their tactical intelligence," said criminologist David Klinger, a former LAPD and Redmond, Washington, police officer and author of "Into the Kill Zone: a Cop's Eye View of Deadly Force," who now works for the Police Executive Research Forum. "Did they know there were children present? Why didn't they just do a contain and call?" where police secure the perimeter and tell the suspect to come outside, he asked.

While sending in the SWAT team in Detroit may be justified, said Klinger, the use of SWAT for small-time drug raids is not. "If you're sending in a SWAT team for a small amount of marijuana, that doesn't make sense," said Klinger. "There are some domestic agencies that don't understand that they should be utilizing some sort of threat assessment. That's one of the big issues regardless of who has oversight. A lot of it is a training issue about when SWAT should be utilized."

There are different pressure points where reformers can attempt to get some control over SWAT deployments. They range from the departmental level, to city hall or the county government, to the state house, and to Congress.

"The first level of oversight should be within the agency, whether it's the chief or some other officer with oversight over SWAT," said Klinger. "You need to make sure they have appropriate command and control and supervision, appropriate surveillance, tactical intelligence, and evidence of something out of the usual as opposed to just 'there's drugs there.' There needs to be a threat matrix done -- are there unusual fortifications, is there a history of violence, are weapons present other than for self protection?"

Neill Franklin is a former Maryland police officer with SWAT experience. He is also the incoming head of Law Enforcement Against Prohibition (LEAP). For Franklin, SWAT has limited legitimate uses, but aggressive, paramilitarized policing has gone too far. He blames the war on drugs.

"Back in the 1970s and 1980s, we didn't use SWAT teams to conduct search warrants unless it was a truly documented violent organization," he said. "As the drug war escalated, we started using SWAT to execute drug-related warrants. When I first started as an undercover officer, the narcotics team executed the warrant, along with two or three uniformed officers, but not with the high-powered weapons and force we use today. The drug war is the reason for using these teams and the driving force behind them," said the former narc.

"Because police have become accustomed to serving so many warrants, they've also become accustomed to using SWAT for every warrant," said Franklin. "In the past, they were more selective. You had to provide the proper intel and articulate why a SWAT team was needed, what was the history of violence, what was the prospect of violence. Some departments now are very strict -- you have to ID the house and the people you're after, you have to photograph the house and the door you're going to go through, you have to know who should be in that house, what special circumstances may be involved, and whether there are children or animals in the house -- but now, I think a lot of departments aren't doing the proper intel."

"You need a threat matrix that talks about unusual weapons," said Klinger. "Does some guy have an automatic shotgun? Is he a major dealer? That's when you might want to send in SWAT, but it's not a good idea to routinely use SWAT."

In addition to doing surveillance and gathering intelligence, police need to ensure they are using the right personnel for SWAT teams, said Franklin, alluding to the fact that such teams are often accused of having a "cowboy" mentality. "These guys are self-selected and handpicked," he said. "You need people in good physical shape, but you have to have a process for selecting the right people with the right personalities."

Franklin also pointed a finger at judges. "I think a lot of the time, judges give warrants out too easily," he said. "A lot of them are just boilerplate, already typed up; you just fill in the blanks and a little detail. They are too easy to draft and get approved by a judge. The judges need to be a bit more strict and ask some questions to ensure a no-knock warrant is justified."

But departmental policies are where to begin, Franklin said. "Policy is the critical point," said Franklin, "policy is the key. And maybe judges need to be involved in asking those policy questions. Are there kids in the home? Dogs? Special circumstances? Do you have photos? I don't think judges are asking enough questions, and there is too much rubber-stamping of warrants. The judges are too loose on this; they need to tighten up."

The next levels of oversight -- and opportunities for intervention -- are the local and state governments, said Klinger. "It generally stops with the mayor and city council, but now Maryland has a law where they have to report, and I don't have a problem with that. We are a representative republic, and the power of the police is very strong. The government operates by the consent of the governed, and the governed need to have information about what their police are doing. Why not?"

There is plenty of work that could be done at the state level, said Eric Sterling, head of the Criminal Justice Policy Foundation (CJPF). "You could amend a state criminal procedure statute to require that a specialized kind of warrant would be needed to use a SWAT team. You could spell out particular things that had to be established, you might require additional verification of informant information beyond an ordinary search warrant, or specific evidence about possession of weapons and evidence about their connection to criminal activity, you could require higher degrees of confirmation about the address, you could require specific findings regarding the presence of children or the elderly, that a buy be done not by an informant but by a member of the law enforcement agency, that there be continuous surveillance of the property for some period before the raid takes place to verify who is present," Sterling said, ticking off a list of possibilities.

As Missouri attorney Viets noted above, it's not just SWAT, it is aggressive tactics like dynamic entry and no-knock raids that are also under scrutiny, whether done by SWAT or by other police units. It is those situations that are most dangerous for police and citizens, with the breaking down of doors, the yelling of commands, the flash-bangs, the confusion. And even the cops are talking about it.

"There is a big debate going on in the SWAT community," said Klinger. "Do you do a dynamic entry, or do you do something less? Some agencies will do a breach and hold, where they get through the front door, but stop there until they make contact with people inside. Another version is the 'contain and call-out', where they announce their presence and ask the people to come outside. Then, officers can carefully, slowly go through the place, and you know that if someone has a gun, he's after you. Sometimes we need to be aggressive, and there's nothing wrong with a dynamic entry, but you want to make sure you're using SWAT in the appropriate circumstances. We want to be minimally aggressive."

"It's those no-knock warrants, whether it's SWAT or not, where people tend to get hurt, where their animals are slaughtered," said Franklin. "That seems to be the norm now. You hear SWAT personnel joking about this all the time. If you know there's an animal in the house, why don't you just have Animal Control along? Unless that dog is so aggressive he's actually ripping people apart, he could be secured. Mostly they are just doing what they are supposed to do: barking and holding their ground."

[Ed: In many cases including the raid in Columbia, a warrant has nominally been served as a knock-and-announce, but the waiting is so short that it effectively equivalent to a no-knock. The term "dynamic entry" roughly applies to both kinds of situations, and "no-knock" is often used to refer to both kinds.]

"I don't know why they're shooting dogs," Klinger said with a hint of exasperation. "Unless they were being aggressive and attacking, you need to rethink what you're doing if you're shooting dogs. Just take a fire extinguisher with you and zap the dog with it. Shooting dogs unnecessarily suggests a lack of training about how to discern what is and is not a threat."

As long as the war on drugs continues, so will the issues around SWAT, no-knock raids, and search warrants. "The vast majority of these warrants are drug related," said Franklin. "The ultimate solution is ending prohibition. That would resolve so many issues."

Somewhat surprisingly, Klinger agreed. "We should just legalize drugs and call off the hounds, but if we're going to have drug prohibition, we have to be able to enforce it," he said. "If the rest of the polity says no to legalization, we can't have a regime where dopers just sit in their homes and do what they want. But if we are going to have the prohibition model, we need appropriate oversight over policing it."

Sterling pointed out some other pressure points for SWAT reform until we get to that day when drug prohibition is just a bad memory. "A private way of thinking about this is to use the Commission on Accreditation for Law Enforcement Agencies, Inc. to include in accrediting criterion better control or management of the way in which SWAT teams are used," said Sterling.

There are also reform possibilities at the federal level, Sterling said. "If you want to set national standards, Congress arguably has the power under the 14th Amendment in terms of equal protection to enforce the Fourth Amendment," he said. "You could provide that SWAT activity carried out outside the limits of such a special warrant could result in civil liability, denial of federal funds to the agency, or potential criminal penalties. There are examples of this in the wiretap law. It's very, very strict in its requirements about what law enforcement agencies have to do and it has very strict reporting requirements. There is certainly precedent in national law for how we regulate highly invasive, specialized law enforcement activities."

Sterling, a Maryland resident himself, said the Maryland SWAT reporting law passed after the Calvo raid shows political space can be created to support reform, but that it isn't easy. "It took raiding the mayor and killing his dogs and their being completely innocent white people to get relatively minor legislative action," he said. "The record keeping requirement is clearly a baby step toward challenging SWAT, and there was very decided knee-jerk law enforcement opposition to it."

It's going to take some organizing, he said. "You have to have a collection of groups deciding to make this an issue the way they made addressing the crack/powder cocaine sentencing disparity an issue. I'm not aware that this has developed yet, and perhaps this is something the drug reform community should be doing. We could take the lead in trying to raise this with more powerful political actors."

New Jersey Multiple Sclerosis patient John Ray Wilson was sentenced last Friday to five years in prison for growing marijuana plants to ease his symptoms. Wilson, whose case we profiled in December, originally faced up to 20 years in prison, but a jury failed to convict him of the most serious charge, maintaining a habitation where marijuana is manufactured. He was convicted of manufacturing marijuana (17 plants) and possession of psychedelic mushrooms.

courthouse demo supporting John Ray Wilson, 2009

State Superior Court Judge Robert Reed banned any references to Wilson's medical condition during his trial, finding that personal use was not a defense and that New Jersey had no law protecting medical marijuana use. Wilson was ultimately able to make a brief, one-sentence mention of his medical reasons for growing marijuana, but that wasn't enough to sway the jury.

Wilson's attorney, James Wronko, told the Associated Press that the outcome might have been different had the jury been allowed to hear more about his illness. "We're disappointed that he's in state prison for smoking marijuana to treat his multiple sclerosis," Wronko . "I think anytime someone using marijuana for their own medical use goes to state prison, it's clearly a harsh sentence."

Wilson's case became a cause célèbre for regional medical marijuana advocates, and also drew attention from the state legislature. Two state senators, Nicholas Scutari, sponsor of the medical marijuana bill, and Ray Lesniak, called in October for Gov. Jon Corzine (D) to pardon Wilson. But Corzine punted, saying he preferred to wait until after Wilson's trial had finished. Now, Wilson has been sentenced to prison, Corzine's term has ended, and new Republican Gov. Chris Christie is not nearly as medical marijuana-friendly.

Wronko said an appeal of the sentence was in the works.