Pubdate: Wed, 01 Apr 2015
Source: Richmond Times-Dispatch (VA)
Copyright: 2015 Media General Communications Holdings, LLC.
Author: A. Barton Hinkle


The 4th Circuit Court of Appeals, once considered one of the most 
conservative in the country, has moved to the left in recent years. 
But if you think that means it is showing a greater regard for 
individual rights and civil liberties, think again. According to a 
ruling the court handed down on March 13, the appropriate range of 
punishments for possessing a small amount of marijuana includes 
summary execution.

In 2005 (the wheels of justice can grind exceedingly slowly) the 
police in Cambridge, Md., acted on a tip and found a small amount of 
marijuana residue in a trash can. At 4:30 a.m. on May 6, a SWAT team 
executed a search warrant on the apartment of Andrew Cornish. A jury 
would later find the commandos failed to knock and announce 
themselves properly. As they rushed through the apartment, Cornish 
came out of the bedroom with a sheathed knife in his hand. The police 
say he advanced on them. One of the officers shot Cornish twice in 
the head, killing him.

Elapsed time: about 30 seconds.

Why did the police burst into Cornish's apartment in the wee hours, 
instead of simply showing up in the middle of the day and knocking 
politely? Not because Cornish was some bigtime drug dealer. There is 
no evidence of that. What's more, he was on friendly terms with the 
officers who sometimes patrolled his neighborhood. No, that's just 
how things are done these days - along with handing out armored 
personnel carriers and other materiel of war to police departments 
big and small. Radley Balko writes all about it in his book, "Rise of 
the Warrior Cop: The Militarization of America's Police Forces."

Cornish's father sued, claiming the police used excessive force and 
violated Cornish's constitutional rights. The first point was quickly 
dispatched with. (Lesson: Never bring a knife to a gunfight.) But as 
Balko points out in his Washington Post blog, on the second point the 
courts agreed. Not only that, "both the trial court and the appeals 
court that ruled against Cornish's father acknowledge Cornish has 
lost his life, Cornish's father has lost his case, and that's that.

End of story. both that the police violated the knock-and-announce 
rule, and that they lied about doing so."

Yet two out of three judges on the 4th Circuit panel (both George W. 
Bush appointees) decided nevertheless that Cornish bore all the blame 
for his own death. Other courts have reached similar conclusions in 
similar cases, you see - so that must make it OK: The police can 
break into your home unlawfully and shoot you dead, and nobody is at 
fault for that except you. Not only that, according to the court 
majority "no reasonable jury could have found that the Officers' 
knock-and-anounce violation proximately caused Cornish's death."

That is irrefutable, in the same way the no-true-Scotsman fallacy is 
irrefutable. If I say to you, "No Scotsman would shave his beard," 
you can show me countless clean-shaven Scotsmen. Rather than concede 
I was wrong, I can say, "Well, no true Scotsman shaves his beard!" 
The revision renders all your counterexamples irrelevant by 
definition. So while it's easy to imagine plenty of juries that might 
blame the police for Cornish's death, the court can simply write them 
all off by contending no reasonable jury would.

Balko goes into some important history about how we got here, and you 
should look up his piece if you're curious. With regard to the case 
at issue, he makes some other powerful points. For instance:

Cornish was somehow supposed to figure out that the people breaking 
into his apartment were police officers because they purportedly said 
so once they were inside. But the whole point of such dark-of-night 
raids is to disorient and confuse the residents so they don't have 
time to think carefully.

Moreover, the court says "according to the Officers ... events in the 
apartment were so fast-moving and conditions for observation so poor 
that they could not discern - nor be expected to discern" that 
Cornish's knife was sheathed.

So under those circumstances a highly trained and fully alert SWAT 
team could not be expected to make the right choices. Yet an 
untrained man woken out of a sound sleep by loud intruders is 
supposed to be able to do so despite their failure to knock and 
announce themselves. In the court's view, Balko writes, "no 
reasonable person could possibly have been confused about the 
identity of the intruders, even though said intruders violated the 
requirement that exists for the purpose of assuring there is no such 

But wait: Not only are we supposed to think that, we also are 
supposed to think no reasonable jury could possibly think otherwise. 
So Cornish has lost his life, Cornish's father has lost his case, and 
that's that. End of story.

The courts, including the Supreme Court, have granted wide latitude 
to police officers, partly because-they say - officers who exceed the 
scope of their authority can be held responsible through lawsuits.

Yeah. Good luck with that.
- ---
MAP posted-by: Jay Bergstrom